USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 1 of 69
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1854
DAMIEN DONOVAN WILLIAMS, a/k/a Damian Donavan Williams,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: December 7, 2021 Decided: November 16, 2022
Before RUSHING, Circuit Judge, and MOTZ and FLOYD, Senior Circuit Judges.
Petition for review granted, vacated, and remanded by published opinion. Senior Judge
Floyd wrote the opinion in which Senior Judge Motz joined. Judge Rushing wrote a
separate dissenting opinion.
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE
CENTER, LLC, Alexandria, Virginia, for Petitioner. Lindsay Colbert Dunn, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF:
Jeffrey Bossert Clark, Acting Assistant Attorney General, Brian Boynton, Acting Assistant
Attorney General, John S. Hogan, Assistant Director, Kiley Kane, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 2 of 69
FLOYD, Senior Circuit Judge:
In 2006, the Department of Homeland Security (DHS) deported Petitioner Damien
Donovan Williams, a permanent resident of the United States since he was six years old,
because the Board of Immigration Appeals (BIA or the Board) deemed his altercation with
the police an aggravated felony. Because of that designation, Williams was not allowed
back into the United States, not even to visit. He would spend the next eleven years in
Jamaica, working mostly for room and board, his U.S.-citizen mother, siblings, girlfriend,
and children affording only a handful of trips to see him. In 2018, the Supreme Court ruled
that the type of offense Williams committed no longer qualified as an aggravated felony.
Learning of that decision in 2019, Williams moved the BIA to reconsider its original
removal order and to equitably toll the usual thirty-day deadline for filing such motions in
view of the legal change. The BIA declined. It did not dispute that Williams is entitled to
be readmitted into the country, but it rejected Williams’s request to toll the limitations
period, believing him insufficiently diligent in discovering his rights.
We cannot agree with that result. We hold that we have jurisdiction to review the
BIA’s decision and that we must review it de novo. And we vacate the Board’s diligence
determination, remanding to the BIA to consider the second prong of the equitable-tolling
inquiry—whether the change in the law constituted an extraordinary circumstance—as
well as the merits of Williams’s claim.
2
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 3 of 69
I.
A.
Under the Immigration and Nationality Act (INA), noncitizens 1 who commit certain
crimes become removable from the United States. 8 U.S.C. § 1227(a)(2)(A). When
noncitizens are permanent residents, however, they may ask the Attorney General to cancel
their removal to avoid causing “exceptional and extremely unusual hardship” to their
families—but only if they did not commit an aggravated felony. Id. § 1229b(a)(3),
(b)(1)(D). Noncitizens who did, even permanent residents, face swift and enduring
consequences. They receive only abbreviated judicial review, with the courts entertaining
only legal and constitutional—but not factual—challenges to “the final order of removal.”
Id. § 1252(a)(2)(C)–(D). And they can never return to the United States. They become, in
the immigration parlance, permanently “inadmissible.” Id. § 1182(a)(9)(A)(ii).
When the DHS brought removal proceedings against Williams in 2005, the INA
defined “aggravated felony” to include all “crime[s] of violence” specified in 18 U.S.C.
§ 16 punishable by imprisonment of at least one year. Section 16, in turn, defined crimes
of violence in two ways: “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another” and a felony
1
We use “noncitizen” in place of the statutory “alien,” which has been recognized as an
“archaic and dehumanizing” term. Maria Sacchetti, ICE, CBP to Stop Using ‘Illegal Alien’
and ‘Assimilation’ Under New Biden Administration Order, Wash. Post (Apr. 19, 2021),
https://www.washingtonpost.com/immigration/illegal-alien-assimilation/2021/04/19/9a2f
878e9ebc-11eb-b7a8-014b14aeb9e4_story.html; see also, e.g., Nasrallah v. Barr, 140 S.
Ct. 1683, 1689 n.2 (2020).
3
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 4 of 69
“that, by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of” the offense. 18 U.S.C. § 16(a)–(b).
In the years following Williams’s removal, the Supreme Court and the BIA twice
refashioned § 16’s definitions. First, in 2010, the Court held that “physical force” must
mean “violent force”—“force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 139–40 (2010). And applying Johnson, the BIA
determined that offenses which by their terms encompass the “slightest touching of
another” no longer qualify as crimes of violence under § 16(a). In re Velasquez, 25 I. &
N. Dec. 278, 282–83 (BIA 2010). 2 Second, in 2018, the Court struck § 16(b) as
unconstitutionally vague on its face. Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018).
Taken together, these decisions permit the DHS to remove noncitizens for committing an
aggravated felony only upon proof of violent force.
Noncitizens so removed may ask the agency to reopen or reconsider the order. A
motion to reopen recites “new facts” not previously available, while a motion to reconsider
2
In determining whether an offense qualifies as a crime of violence, courts apply a
categorical approach, meaning they “consider only the elements of the statute of conviction
rather than the defendant’s conduct underlying offense.” Omargharib v. Holder, 775 F.3d
192, 196 (4th Cir. 2014). Occasionally, courts consider statutes “divisible” because they
“set forth multiple crimes, with varying elements—and some of the crimes set forth therein
would pass the categorical inquiry if examined on their own.” Bah v. Barr, 950 F.3d 203,
206 (4th Cir. 2020) (citation omitted). In such cases, courts modify the categorical
approach “to determine what crime, with what elements, a defendant was convicted of.”
Id. at 207 (citation omitted). Either way, courts “focus on the elements, rather than the
facts, of a crime” because “Congress predicated deportation on convictions, not conduct.”
Id. at 206–07 (citations omitted). Thus, the BIA’s ruling: Offenses that encompass mere
offensive touching categorically cannot satisfy §16(a)’s definition of a crime of violence
and, correspondingly, cannot confer a basis for removal.
4
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 5 of 69
specifies “errors of law or fact in the previous order.” 8 U.S.C. § 1229a(c)(6)(C), (7)(B).
Noncitizens may file one of each. They have thirty days to request reconsideration and
ninety to move to reopen. Id. § 1229a(c)(6)(B), (7)(C). If the BIA declines, noncitizens
may petition the appropriate court of appeals. But courts will not review the underlying
removal order by that same petition; noncitizens must file “separate petitions” laying out
errors in those separate decisions. Stone v. INS, 514 U.S. 386, 395 (1995).
B.
Damien Donovan Williams is a native and citizen of Jamaica. He moved to the
United States in July 1987, when he was just six years old, and became a permanent
resident in October of that same year. His mother, three of his four siblings, his long-term
girlfriend (now wife), and his four children are all U.S. citizens.
In February 2003, Williams was convicted of assault and battery of a police officer,
obstructing justice, disorderly conduct, and failure to appear under Virginia law. See Va.
Code Ann. §§ 18.2-57(C), 18.2-460, 18.2-415, 19.2-128. The three substantive offenses
arose out of a single incident, when Williams resisted an officer’s spraying him with mace
after he was already in handcuffs. Williams then failed to appear because of conflicting
court dates: he was in one courtroom when he was called in another.
In September 2005, the DHS initiated removal proceedings, contending Williams
was removable for having committed both an aggravated felony—the assault and battery
on the police officer—and two crimes involving moral turpitude (CIMTs)—the same
assault and battery and the failure to appear. See 8 U.S.C. § 1227(a)(2)(A)(ii)–(iii) (listing
5
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 6 of 69
aggravated felony and multiple CIMTs as separate grounds for removability). Williams
had trouble retaining a pro bono attorney, even with the four continuances the immigration
judge (IJ) allowed. But during the fifth hearing, an attorney sitting in the courtroom agreed
to take on his case. With this attorney’s help, Williams denied removability and asked the
IJ to terminate the proceedings. The IJ agreed Williams’s conviction did not rise to an
aggravated felony but still ruled him removable for committing two CIMTs.
Williams then requested cancellation of removal. The government maintained that
Williams committed an aggravated felony, rendering him ineligible, but did not otherwise
oppose his request. After a hearing, the IJ issued a short oral decision allowing Williams
to stay. The government appealed to the BIA, arguing once more that Williams’s assault
on the officer amounted to an aggravated felony, and this time, the agency agreed. It
determined the assault qualified as a crime of violence under both §§ 16(a) and (b).
Williams never appealed the IJ’s CIMT decision—it did not affect his ability to request
cancellation of removal—but he did file a motion to reconsider the BIA’s aggravated-
felony ruling, which the BIA denied. Williams’s attorney then ended his representation,
leaving Williams to petition this Court pro se. We denied the petition, Williams v.
Gonzales, 234 F. App’x 113 (4th Cir. 2007), and the DHS deported Williams to Jamaica.
As discussed, in the ensuing years, the Court decided Johnson and Dimaya, and the
BIA applied Johnson to battery offenses that include the mere touching of another—
indeed, the very offense of which Williams was convicted, Va. Code Ann. § 18.2-57. But
Williams remained unaware. As he would later explain in an affidavit to the BIA, he
worked as a groundskeeper in exchange for room and board and served as a maintenance
6
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 7 of 69
man on weekends, earning only about $20 per job. He had no access to the Internet. And
his only pro bono lawyer had long cut all ties. Williams’s family, themselves earning only
about $20,000 per year, barely managed to visit him in Jamaica and did not have the funds
to repeatedly hire attorneys to check whether the law had changed.
In 2019, Williams was finally able to marry his girlfriend, Lawaren Person. The
same year, unfortunately, the lung disease Person had previously kept in check aggravated
significantly, and Person’s doctors advised her against spending time in polluted countries
like Jamaica. Out of desperation, Person consulted an immigration attorney in April 2019
to determine if any avenues had opened up to allow her husband back in. The attorney
requested Williams’s file from the DHS under the Freedom of Information Act, which
arrived towards the end of June 2019. Quickly appreciating the upshot of Johnson and
Dimaya, she filed for reconsideration just one month later, in July 2019. She asked the
BIA to either equitably toll the time and number limitations on Williams’s motion or to
reconsider sua sponte. In support of the application, Williams attached declarations from
himself and Person explaining why his living conditions in Jamaica and her scarce wages
in the United States had precluded them from retaining an attorney until 2019.
The government did not oppose Williams’s motion, but the BIA still denied his
request. It did not dispute that Williams’s conviction no longer qualified as a crime of
violence but declined to equitably toll the statutory limits, faulting Williams for failing to
explain why he “had not regularly sought out pro bono counsel prior to April 2019 to stay
informed on the status of the law” and why Person did not “assist him from the United
States.” A.R. 5. The Board also declined to reconsider sua sponte, again citing Williams’s
7
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 8 of 69
nondiligence in ferreting out U.S. immigration law. Williams timely petitions for review
of both rulings. 3
II.
Before we can delve into the substance of the BIA’s equitable-tolling decision, we
must determine how much of it we have jurisdiction to review, what standard of review we
should employ, and whether the statutory deadline for a motion to reconsider can be
equitably tolled at all. We take these in turn, beginning here with jurisdiction.
As discussed, § 1252(a)(2)(C) prohibits courts of appeals to “review any final order
of removal against an alien who is removable by reason of having committed” certain
specified crimes, including aggravated felonies and multiple CIMTs. 8 U.S.C.
§ 1252(a)(2)(C). Both parties agree that if § 1252(a)(2)(C) applies, § 1252(a)(2)(D)
nonetheless permits us to review “constitutional claims or questions of law.” Id.
§ 1252(a)(2)(D). The parties also agree that questions of law include whether “the Board
incorrectly applied the equitable tolling due diligence standard to the ‘undisputed’ (or
established) facts.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). But
Williams resists this threshold determination. He argues § 1252(a)(2)(C) does not apply at
all, that we have authority to review the BIA’s factual errors, as well.
3
In 2020, the Department of Justice amended 8 C.F.R. § 1003.2(a) to prohibit the BIA
from reconsidering final orders of removal sua sponte except to correct ministerial errors,
see Appellate Procedures and Decisional Finality in Immigration Proceedings;
Administrative Closure, 85 Fed. Reg. 81,588, 81,591 (Dec. 16, 2020), but a federal court
has since enjoined the implementation of the amendment nationwide, see Centro Legal de
la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919, 928–29, 980 (N.D. Cal. 2021).
8
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 9 of 69
The only factual ruling in play concerns the BIA’s determination that Williams’s
2019 attorney offered her services pro bono. Williams contends the BIA reasoned from
that (incorrect) conclusion that he could have found pro bono representation at any time,
enabling him to monitor the immigration law through the years. And because he did not,
he must not have acted diligently. But the fact was Person had to pay the attorney for her
work. And that undercuts the BIA’s diligence ruling: That Person spent money out of her
impossibly tight budget demonstrates just how difficult it is to find a pro bono immigration
attorney, even from inside the United States. This one factual issue may be modest in
scope, but it breeds critical jurisdictional consequences for our future cases. In the end, we
agree with Williams that the INA never meant to bar judicial review of collateral facts far
removed from the underlying “final order of removal.” 8 U.S.C. § 1252(a)(2)(C).
A.
In the deportation context, a “final order of removal” refers to an order “concluding
that the alien is deportable or ordering deportation.” Nasrallah v. Barr, 140 S. Ct. 1683,
1690 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). That order becomes “final, and
reviewable, when issued.” Stone, 514 U.S. at 405. And its “finality is not affected by the
subsequent filing of a motion to reconsider.” Id. That is why, when we review the BIA’s
refusal to reconsider its removal decision, “the merits of the underlying” decision “are not
before us.” Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006). To reach those merits, a
noncitizen must file a “separate petition[ ] for review.” Stone, 514 U.S. at 395. These are
nonnegotiable, “jurisdictional” constraints. Yurova v. Lynch, 606 F. App’x 82, 83 (4th Cir.
9
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 10 of 69
2015) (citation omitted). But they also reflect common sense. It is “axiomatic” that before
the BIA can reconsider a removal order, “there must first be an order of removal” to be
reconsidered—especially where, as here, Williams was actually “removed pursuant to a
valid order” twelve years ago. Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2284, 2287–
88 (2021) (quoting In re I-S-, 24 I. & N. Dec. 432, 433 (BIA 2008)).
Still, it would blink reality to decline to review a factual challenge to the BIA’s
removal order only to then review “that same” challenge “dressed as a motion to
reconsider.” Jean, 435 F.3d at 481. And were we asked to decide factual questions that
“affect the validity of the final order of removal”—such as, for example, whether and how
Williams resisted arrest—we would certainly lack jurisdiction under § 1252(a)(2)(C).
Nasrallah, 140 S. Ct. at 1691. But that is not what Williams asks us to do. He asks only
that we correct the BIA’s misconception that he successfully retained pro bono counsel
when he finally moved for reconsideration. That conclusion was “adjunct” in every sense
to the agency’s prior “substantive” determination that Williams committed an aggravated
felony and was therefore removable. Kucana v. Holder, 558 U.S. 233, 248 (2010); Guzman
Chavez, 141 S. Ct. at 2287 (distinguishing “withholding-only proceedings” from “removal
orders” because the two proceedings “address two distinct questions”). And indeed, we
have already recognized our jurisdiction to consider such collateral factual matters, albeit
without expressly tracing the source of that authority. Just two terms ago, we agreed to
review the BIA’s refusal to reconsider a final order removing a criminal noncitizen on
grounds that the noncitizen’s “new arguments were waived” and “that his request to present
the additional evidence . . . was untimely.” Cucalon v. Barr, 958 F.3d 245, 253–54 (4th
10
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 11 of 69
Cir. 2020). We did not once mention § 1252(a)(2)(C)’s jurisdictional bar in examining the
BIA’s reconsideration decision, even as elsewhere in the opinion we painstakingly
explained that “we lack jurisdiction to review an order of removal based on an alien’s
conviction of an aggravated felony.” Id. at 249 (emphasis added).
The Supreme Court confronted a similar challenge in Nasrallah and came to a
similar conclusion. Nasrallah asked whether courts of appeals can review factual rulings
underpinning Convention Against Torture (CAT) orders for criminal noncitizens or
whether CAT orders merge into final orders of removal so that § 1252(a)(2)(C)’s
limitations apply to CAT determinations, too. 140 S. Ct. at 1688. The Court held review
appropriate, in part because, unlike the facts underlying the order of removal, factual
“issues related to a CAT order will not typically have been litigated prior to the alien’s
removal proceedings” in any Article III court. Id. at 1693. And yet those issues, which
“may range from the noncitizen’s past experiences in the designated country of removal,
to the noncitizen’s credibility, to the political or other current conditions in that country,”
may be “critical to determining” the whole course of the noncitizen’s future. Id. Congress,
the Court reasoned, could not have intended to strip courts of jurisdiction over these
collateral rulings when it barred “further relitigation of the underlying factual bases for
those criminal convictions.” Id.
And a jurisdictional bar would be doubly inappropriate here, where Williams’s
argument on the merits “would itself be reviewable.” Kucana, 558 U.S. at 250. Williams
argues that, as a matter of law, he can no longer be classed an aggravated felon after
Johnson and Dimaya. Not only does § 1252(a)(2)(D) give us jurisdiction to review that
11
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 12 of 69
“question of law,” see Guevara-Solorzano v. Sessions, 891 F.3d 125, 131 (4th Cir. 2018),
but the government does not even dispute that Williams would succeed on it. And yet, the
government’s rule would leave us powerless to meaningfully review the BIA’s threshold,
procedural determination that cut short Williams’s only hope of reuniting with his family.
That cannot be what Congress had in mind when drafting § 1252(a)(2)(C).
B.
Longstanding exercise of judicial review of the Board’s reconsideration decisions,
the history of the relevant statutory provisions, the presumption favoring judicial review,
and separation-of-powers concerns all reinforce this conclusion.
Motions to reconsider and reopen have long been understood to provide “an
‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration
proceedings.” Kucana, 558 U.S. at 242 (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)).
And federal-court review of these administrative decisions dates to at least 1916. Id. For
the first eight of those decades, no statutory authority governed judicial review—Attorney
General regulations first addressed reopening and reconsideration requests in 1941 and
then again in 1958, when the BIA was established, but they, of course, said nothing of our
jurisdiction to review them. See id. at 249 (citing New Regulations Governing the Arrest
and Deportation of Aliens, 6 Fed. Reg. 68, 71–72 (Jan. 4, 1941); Miscellaneous
Amendments to Chapter, 23 Fed. Reg. 9115, 9118–19 (Nov. 26, 1958)). It was not until
1996, when Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), that motions to reopen and reconsider took on a statutory
12
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 13 of 69
dimension. See 8 U.S.C. § 1229a(c)(6) (largely codifying the 1958 regulations). “In the
same legislation, Congress amended the INA aggressively to expedite removal of aliens
lacking a legal basis to remain in the United States,” including by passing § 1252(a)(2)(C).
Kucana, 558 U.S. at 249 (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.
471, 475 (1999)). But it said nothing about extending § 1252(a)(2)(C) to our review of
reopening and reconsideration motions, even though it could have easily “so specified
together with its codification of directions on filing [those] motions.” Id. at 250. Instead,
“Congress left the matter where it was”: The BIA has discretion to grant or deny such
motions, and we “retain jurisdiction to review” all aspects of the BIA’s decisions except
where our review clearly conflicts with § 1252(a)(2)(C)’s core statutory aims. Id.; accord
Mata v. Lynch, 576 U.S. 143, 148 (2015) (explaining that federal courts “have reviewed
[reopening and reconsideration] decisions for nearly a hundred years” without express
statutory directive and that IIRIRA “left that authority in place” (citing Kucana, 558 U.S.
at 242–51)). 4
4
To be sure, in addition to our traditional authority, Mata also cited § 1252(b)(6), which
consolidates “any review sought of a motion to reopen or reconsider” with “the review of
the [underlying] order.” 576 U.S. at 147–48 (cleaned up) (quoting 8 U.S.C. § 1252(b)(6)).
But Mata cited the provision to illustrate only that Congress “expressly contemplate[d]”
our jurisdiction to review BIA denials to reopen or reconsider—and left it unchanged—not
to suggest that our only jurisdictional basis to review those denials flows from our authority
to review final removal orders. Id. at 147. For if Mata believed that, it would not have
reviewed the BIA’s denial to equitably toll the limitations on a motion to reopen—removal
orders, after all, do not implicate equitable tolling. See also Nasrallah, 140 S. Ct. at 1691
(rejecting the government’s argument that CAT rulings merge into final removal orders
because § 1252(b)(9) consolidates “all questions of law and fact . . . arising from any action
taken or proceeding brought to remove an alien from the United States” with “judicial
review of a final order” and holding instead that § 1252(b)(9) “simply establish[es] that a
(Continued)
13
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 14 of 69
Any lingering doubt over our authority to review factual challenges to the BIA’s
denials to reopen or reconsider cannot survive the “familiar principle of statutory
construction: the presumption favoring judicial review of administrative action.” Kucana,
558 U.S. at 251. Because courts had already been consistently applying that presumption
when Congress passed IIRIRA in 1996, e.g., Bowen v. Mich. Acad. of Fam. Physicians,
476 U.S. 667, 670 (1986), we can assume Congress “legislate[d] with knowledge of” that
presumption. Kucana, 558 U.S. at 252 (quoting McNary v. Haitian Refugee Ctr., Inc., 498
U.S. 479, 496 (1991)). So the statutory question becomes not whether IIRIRA created
jurisdiction, but whether IIRIRA “clear[ly] and convincing[ly] . . . dislodge[d]” it. Id.
(quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 64 (1993)). Because IIRIRA did no
such thing, we continue to exercise our jurisdiction as we always have, reviewing even the
factual challenges to BIA refusals to reopen and reconsider.
Foundational separation-of-powers considerations point us in the same direction.
Congress well knew how to expressly delegate final authority over motions to reopen or
reconsider to the Department of Justice. Where it has not done so, courts should not “place
in executive hands authority to remove cases from the Judiciary’s domain.” Id. at 237;
accord Costello v. INS, 376 U.S. 120, 127–28 (1964) (advising caution “before adopting a
construction of [the statute] which would, with respect to an entire class of aliens,
completely nullify a procedure so intrinsic a part of the legislative scheme”); INS v. St. Cyr,
533 U.S. 289, 320 (2001) (recognizing “the longstanding principle of construing any
CAT order may be reviewed together with the final order of removal” (quoting 8 U.S.C. §
1252(b)(9))).
14
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 15 of 69
lingering ambiguities in deportation statutes in favor of the alien” (quoting INS v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987))). 5
C.
We are not alone in so understanding federal-court jurisdiction over the BIA’s
reopening and reconsideration decisions. The Ninth Circuit, for example, has accepted
jurisdiction to review the agency’s factfinding where the Board “did not rely on [a
noncitizen’s] conviction of a crime involving moral turpitude” but on its determination that
the noncitizen had “not demonstrated a change in country conditions material to his claim
for relief.” Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). The Fifth Circuit
has gone even further, claiming jurisdiction to resolve “any factual questions necessary” to
resolve questions of law. Diaz v. Sessions, 894 F.3d 222, 224–25, 227 & n.4 (5th Cir.
2018) (invoking §1252(a)(2)(D)’s command that “nothing shall preclude” judicial review
of legal claims). And like this Court in Cucalon, the Eleventh Circuit has assumed
authority to review collateral factual questions on petitions from motions to reopen and
reconsider without any reference to the criminal-noncitizen bar. See Abakporo v. U.S. Att’y
Gen., No. 20-12750, 2021 WL 3598346, at *5–6 (11th Cir. Aug. 13, 2021); Israel v. U.S.
5
We have previously suggested in a nonpublished, nonprecedential decision that final
orders of removal subsume motions to reopen and reconsider, implicating the
§ 1252(a)(2)(C) bar. Rangolan v. Mukasey, 302 F. App’x 133, 136 (4th Cir. 2008). We
reached that conclusion because we read § 1252(a)(1)—which confirms federal-court
jurisdiction over “final orders of removal”—as providing “our only basis” to review such
motions. Id. We now believe that a too-narrow interpretation after Mata and Kucana.
15
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 16 of 69
Att’y Gen., 861 F. App’x 371, 374 (11th Cir. 2021), cert. denied sub nom. Israel v. Garland,
No. 21-6352, 2022 WL 89583 (U.S. Jan. 10, 2022).
In the obverse, the Second Circuit has declined jurisdiction where the “orders are
sufficiently connected that permitting review of a motion to reopen when § 1252(a)(2)(C)
bars review of the final order of removal would provide an improper backdoor method of
challenging a removal order.” Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2004), as
amended (Feb. 1, 2005); see also Santos-Salazar v. U.S. Dep’t of Just., 400 F.3d 99, 103
(2d Cir. 2005) (declining to review the Board’s denial of reconsideration, where petitioner
asked the court to “revoke the final Order of deportation”).
The through-line in these decisions demonstrates that courts of appeals look to the
reasons the BIA gave when fixing the bounds of their jurisdiction. Where the Board finds
the substance of a removal order makes reopening or reconsideration imprudent, the courts
decline jurisdiction to avoid creating a “loophole” that “would thwart the clear intent of
Congress that the courts not review” factual predicates to the agency’s decisions to remove
criminal noncitizens. Jean, 435 F.3d at 481 (quoting Rodriguez v. Ashcroft, 253 F.3d 797,
800 (5th Cir. 2001)). But where the BIA declines to reopen or reconsider in view of
collateral issues, the courts have appropriately claimed jurisdiction to review.
Our own analysis of the neighboring § 1252(a)(2)(B), which strips federal courts of
jurisdiction to review the agency’s discretionary decisions, further counsels jurisdiction
over the factual question here. In that context, we “examine the basis for the BIA’s
decision” to determine our jurisdiction because § 1252(a)(2)(B) “divests courts of
jurisdiction only over BIA decisions that address the merits of an alien’s request for relief
16
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 17 of 69
pursuant to those sections.” Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir. 2005)
(quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)). In Obioha, for example, the
Board declined to remand because a noncitizen “failed to seek cancellation of removal”
before the IJ “when she had the opportunity to do so” and “failed to present the elements
of prima facie eligibility for cancellation of removal in her motion” to remand. Id. at 407.
We deemed those “procedural failure[s]” “unrelated to the merits of a discretionary
decision on cancellation of removal” and proceeded to review. Id. We have upheld that
approach since. E.g., Jean, 435 F.3d at 481; Sorcia v. Holder, 643 F.3d 117, 126 (4th Cir.
2011); Agidi v. Garland, No. 20-2116, 2021 WL 5003416, at *1 (4th Cir. Oct. 28, 2021).
The same principle holds true here. Williams asked us to consider a factual
challenge “unrelated to the merits” of the final removal order, Obioha, 431 F.3d at 407—
or, put in Nasrallah’s words, a challenge that cannot “affect the validity of the final order
of removal,” 140 S. Ct. at 1691. We hold we have jurisdiction to resolve it. 6
6
Williams offers yet another jurisdictional basis. He proposes we begin by reviewing the
agency’s original determinations that Williams committed the aggravated felony and the
two CIMTs. This Court has authority to do so, Williams asserts, because it always has
jurisdiction “to determine whether a petitioner actually has triggered the statute’s
jurisdiction stripping provision.” Kporlor v. Holder, 597 F.3d 222, 225 (4th Cir. 2010);
see also, e.g., Guevara-Solorzano, 891 F.3d at 131. If we agree he did not commit those
crimes, Williams continues, § 1252(a)(2)(C) never comes into play at all. That analysis
would be relatively straightforward as to Williams’s aggravated-felony conviction—as
discussed, not even the government disputes that Johnson and Dimaya compel that result.
But the two CIMTs present a higher and perhaps insurmountable hurdle, for Williams
never appealed the IJ’s CIMT finding to the BIA. An argument can be made that we may
consider an unexhausted claim for the limited purpose of determining our jurisdiction, but
such a restricted approach would likely run afoul of the law-of-the-case doctrine. And our
unpublished decisions have already declined to do so, albeit without considering this
nuanced argument. E.g., Obomighie v. Holder, 480 F. App’x 225, 227 (4th Cir. 2012).
Because we find jurisdiction for other reasons, we do not reach this question.
17
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 18 of 69
III.
Also at the threshold, we must grapple with the standard of review. Both parties
agree, as they must, that the ultimate “decision to grant or deny a motion to reopen or
reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2. Federal courts of
appeals have correspondingly “employed a deferential, abuse-of-discretion standard.”
Kucana, 558 U.S. at 242, 250; see also Jean, 435 F.3d at 483; Lawrence v. Lynch, 826 F.3d
198, 203 (4th Cir. 2016). And yet, argues Williams, the Supreme Court recently held that
the specific question before us today—whether a petitioner exercised sufficient diligence
to warrant equitable tolling—constitutes a “question of law.” Guerrero-Lasprilla, 140 S.
Ct. at 1068. Williams accordingly asks us to review that narrow, subsidiary question de
novo. We agree with Williams, though not for the reasons he offers.
A.
The question presented in Guerrero-Lasprilla asked whether the term “questions of
law” in § 1252(a)(2)(C) “includes the application of a legal standard to undisputed or
established facts.” 140 S. Ct. at 1067. The Court held it does, that all mixed questions of
law and fact present questions of law for purposes of the jurisdictional bar. Id. Williams
takes from that conclusion that equitable-tolling determinations require de novo review.
But the Court predicated its decision on § 1252(a)(2)(C)’s “basic purpose of providing an
adequate substitute for habeas review” as well as on the “traditional understandings and
basic principles: that executive determinations generally are subject to judicial review.”
Id. at 1069, 1073 (citation omitted). The Court was also troubled that “interpreting the
18
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 19 of 69
Limited Review Provision to exclude mixed questions would effectively foreclose judicial
review of the Board’s determinations so long as it announced the correct legal standard.”
Id. at 1070. Those are uniquely jurisdictional concerns—much the same we just considered
in Part II. They have to do with whether, not how, federal courts may review agency
decisions. And the Court expressly declined to answer what its § 1252(a)(2)(C) holding
means for “the proper standard for appellate review of a district, bankruptcy, or agency
decision that applies a legal standard to underlying facts.” Id. at 1069.
Admittedly, there is some tension in characterizing a question as legal when
determining jurisdiction but as factual or discretionary when choosing the standard of
review. But our own precedent, too, has drawn this distinction. Cruz-Quintanilla v.
Whitaker, for example, concluded that government acquiescence in torture is a legal
question when determining the standard of review but a factual one for purposes of federal-
court jurisdiction. 914 F.3d 884, 889 (4th Cir. 2019) (citing Saintha v. Mukasey, 516 F.3d
243, 247–50 (4th Cir. 2008)). We reasoned the different outcomes possible because the
two inquiries pursue different aims: The standard of review concerns competency and
expertise, it asks, in essence, how prudent it would be to defer to the decisionmaker below,
but § 1252(a)(2)(C) speaks to “the division of authority between the Executive and the
judiciary.” Id. at 891. Guerrero-Lasprilla, of course, has overruled Cruz-Quintanilla’s
jurisdictional holding, as the ultimate question of whether a government acquiesces to
torture involves “applying the law to decided facts.” Id. at 890 (citation omitted). But its
animating principle remains: A jurisdictional ruling does not mechanically translate into
the standard of review; we must determine for ourselves which standard governs.
19
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 20 of 69
We begin with the common-sense principle that the Board’s decision to decline
reconsideration, discretionary as it is at day’s end, usually builds upon a variety of
subsidiary legal and factual conclusions. The Board may, for example, deny the motion
because a noncitizen brings no new law to its attention. Or it may disagree with the
noncitizen’s interpretation of the new law, concluding he nonetheless lacks a legal path to
relief. In still other cases, the Board may forego any determination as to the noncitizen’s
substantive entitlement to relief and decline to reconsider on procedural grounds. See INS
v. Abudu, 485 U.S. 94, 104 (1988) (surveying the different reasons the BIA may decline to
reopen). The route the Board chooses, in turn, frames our review: Did the Board “distort[ ]
or disregard[ ] important aspects of the applicant’s claim”? Tassi v. Holder, 660 F.3d 710,
719 (4th Cir. 2011). Did it “make rulings that are based ‘on an inaccurate perception of
the record’”? Id. (quoting Jian Tao Lin v. Holder, 611 F.3d 228, 237 (4th Cir. 2010)). Did
it act “contrary to the law”? Id. All of these are ways to assess whether, overall, the Board
abused its discretion. But courts must separate out the subsidiary factual or legal or mixed
factual and legal determinations to understand why the Board denied the motion. And they
must apply the usual standards to review those subsidiary determinations: de novo for law,
Guerrero-Lasprilla, 140 S. Ct. at 1069, substantial evidence for fact, Biestek v. Berryhill,
139 S. Ct. 1148, 1153 (2019), and, as the Court has recently clarified, either de novo or
substantial evidence for mixed questions, depending on “whether answering [them] entails
primarily legal or factual work,” U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt.
LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967 (2018) (explaining that “[m]ixed
20
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 21 of 69
questions are not all alike,” some turn on “developing auxiliary legal principles of use in
other cases,” while others “immerse courts in case-specific factual issues”).
The government asks us to short-circuit this common-sense approach and consider
only whether the Board abused its discretion overall. That may be appropriate where the
Board “leap[s] over” substantive and procedural questions “and simply determine[s]” it
will deny relief as a matter of “discretion” even if a noncitizen proves his legal claim.
Abudu, 485 U.S. at 105 (allowing the agency to do so where “the ultimate grant of relief is
discretionary”). But that is not what the Board did here. And we “may uphold agency
action only on the grounds the agency invoked when it took the action.” Michigan v. EPA,
576 U.S. 743, 758 (2015) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)).
Undaunted, the government holds out Jean, 435 F.3d at 482–83, Lawrence, 826
F.3d at 203, and an older Supreme Court case, INS v. Doherty, 502 U.S. 314, 323 (1992),
as mandating abuse-of-discretion review for all reconsideration decisions. But none of
these cases supports the government’s position in the way it claims. In Jean, the Board
denied a noncitizen’s request to reconsider its previous refusal to cancel removal because
it could “find no new legal argument” in Jean’s motion. 435 F.3d at 483 (citation omitted).
We affirmed under abuse of discretion, and rightly so. There was nothing legal or factual
about the Board’s conclusion; we needed to ascertain only that “the BIA supplied a rational
explanation” for its denial. Id. But we clarified that “our review [was] limited to the
motion to reconsider” as Jean never petitioned for review of the Board’s original ruling
that she was not entitled to cancellation of removal. Id. at 482. Had Jean done so, we
would have focused on the specific reason the BIA gave for its decision—“that Jean was
21
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 22 of 69
statutorily precluded from demonstrating good moral character”—and we would have
reviewed it de novo. Id. Even though “cancellation of removal” ultimately calls for “a
discretionary form of relief,” we explained, whether Jean was statutorily precluded from
that relief was a “legal,” “not a discretionary decision.”. Id.
The same goes for Lawrence. Although we noted that we review the ultimate denial
to reopen “for abuse of discretion,” Lawrence’s specific challenge was narrower: He
maintained “the Board applied a heightened diligence standard that required absolute
diligence rather than reasonable diligence and therefore committed an error of law.” 826
F.3d at 203–04. Correspondingly, we analyzed whether the Board “set forth the correct
standard.” Id. at 204. We held that it did, because the Board understood “due diligence”
as “we define” that term—not because the Board gave its own legal interpretation of the
term to which we deferred. Id. (emphasis added) (citation omitted). Our review of the
narrow legal question was thus de novo—in deed, if not by express terms.
Finally, the government ignores the critical context behind Doherty’s
pronouncement that “the abuse-of-discretion standard applies to motions to reopen
regardless of the underlying basis of the alien’s request for relief.” 502 U.S. at 323 (cleaned
up) (citation omitted). It reads “regardless of the underlying basis” as setting the abuse-of-
discretion standard for all motions to reopen no matter why the BIA denied them. But
Doherty (and Abudu, where the phrase originated) held only that the same standard applies
“regardless” of whether a noncitizen asks to reopen to consider his “claims for asylum [or
his] claims for withholding of deportation,” because the two involve substantially the same
inquiries. See id. at 324; Abudu, 485 U.S. at 99 n.3. Neither case said anything about
22
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 23 of 69
applying the same standard “regardless” of whether the BIA issued a decision rooted in
fact, discretion, or law. Quite the opposite, the Court declined to espouse a standard for
reviewing a denial to reopen on grounds that “the movant has not established a prima facie
case for the underlying substantive relief sought.” 485 U.S. at 104; see also 502 U.S. at
323. If anything, those cases reinforce our conclusion that the proper standard depends on
the discrete question we must review, not some broader conclusions the BIA could have
but did not, in fact, draw.
None of this is novel or controversial. We have repeatedly held across immigration
decisions—yes, even where the BIA had discretion to ultimately withhold relief—that “we
review legal questions de novo” and factual decisions for “substantial evidence.” Diaz de
Gomez v. Wilkinson, 987 F.3d 359, 363 (4th Cir. 2021) (asylum); see also, e.g., Gonzalez
Galvan v. Garland, 6 F.4th 552, 561 (4th Cir. 2021) (cancellation of removal); Gonzalez
v. Garland, 16 F.4th 131, 145 (4th Cir. 2021) (motions to remand). That makes good sense:
A self-contained factual finding is either supported by the record or not; a legal conclusion
is either right or wrong. And that is why the abuse-of-discretion standard itself directs
courts to reverse where an agency “distorts” the record or acts “contrary to law.”
Lawrence, 826 F.3d at 203 (cleaned up) (citations omitted).
Unsurprisingly, our sister circuits likewise parse out the predicate questions that
form the building blocks for BIA decisions. The Third and the Fifth Circuits have both
recently confirmed that although they “appl[y] a highly deferential abuse-of-discretion
standard” to the BIA’s day-end “denial of a motion to reopen,” as part of that analysis, they
“review[ ] legal conclusions de novo and factual findings for substantial evidence.”
23
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 24 of 69
Guerrero-Lasprilla v. Barr, 822 F. App’x 254, 257 (5th Cir. 2020) (asking whether the
BIA “err[ed]” in holding the noncitizen could have filed earlier); see Darby v. U.S. Att’y
Gen., 1 F.4th 151, 159 (3d Cir. 2021) (setting forth the same standard); Liang v. U.S. Att’y
Gen., 15 F.4th 623, 626–30 (3d Cir. 2021) (Jordan and Ambro, JJ., concurring) (clarifying
that the court applied de novo review to the specific question that needed resolving—
whether the maltreatment a noncitizen alleged amounted to past persecution—even where
the BIA’s denial of asylum was discretionary overall). The Sixth Circuit offers more of
the same. In Singh v. Rosen, for example, the court acknowledged Congress left
cancellation of removal to agency discretion but reasoned that the underlying question of
whether removal would pose “exceptional and extremely unusual hardship” to a
noncitizen’s family involves “applying the law to a set of facts” and so requires de novo
review when the court “expound[s] on the law.” 984 F.3d 1142, 1152–54 (6th Cir. 2021)
(quoting U.S. Bank, 138 S. Ct. at 967), reh’g denied (Feb. 11, 2021).
We see no reasoned principle by which to single out BIA denials to reopen or
reconsider from scores of other discretionary agency decisions. See Abudu, 485 U.S. at
105 (observing that the BIA has discretion to deny relief in swaths of cases, including
“asylum, suspension of deportation, and adjustment of status”). Consequently, we worry
that applying abuse of discretion indiscriminately to all subsidiary questions here would
reverberate across and likely jeopardize decades of that settled jurisprudence. We decline
to do so and instead confirm the staple principle that appellate courts must match the
standard of review to the specific rationale the BIA gave for its decision.
24
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 25 of 69
B.
That part was straightforward. The harder question is how exactly to characterize
BIA tolling determinations. In the past, we have given conflicting answers to this question.
In some cases, “where the relevant facts [were] undisputed and the district court denied
equitable tolling as a matter of law, we review[ed] the district court’s decision de novo.”
Rouse v. Lee, 339 F.3d 238, 248 (4th Cir. 2003) (en banc). But in “other circumstances,”
we suggested “abuse of discretion” may be more appropriate. Id. Rouse itself applied
abuse of discretion to the district court’s determination that, “accepting all of the facts
Rouse pled about his health to be true, his medical condition did not amount to an
extraordinary circumstance beyond his control that prevented him from filing.” Id. at 248
& n.10. But if Rouse was meant to signal some broader shift to a more deferential standard,
our follow-on cases have not embraced it. While they continue to dutifully recite Rouse’s
mantra that our Court “typically” reviews “equitable tolling arguments only for abuse of
discretion,” they go on to consider anew whether the “facts demonstrate a failure to bring
a timely claim.” Cruz v. Maypa, 773 F.3d 138, 143 (4th Cir. 2014) (cleaned up) (citing
Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003)); accord Ott v. Md. Dep’t of Pub.
Safety & Corr. Servs., 909 F.3d 655, 658 (4th Cir. 2018); Warfaa v. Ali, 1 F.4th 289, 293
(4th Cir. 2021). That later approach seems right to us.
Consider first Guerrero-Lasprilla. The Court, as noted above, expressly reserved
the question of the “proper standard” of review. 140 S. Ct. at 1069. But it prescribed that
the answer must “turn on practical considerations, such as whether the question primarily
requires courts to expound on the law . . . or rather immerses courts in case-specific factual
25
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 26 of 69
issues,” because diligence for equitable-tolling purposes presents a “mixed question of law
and fact.” Id. (cleaned up) (quoting U.S. Bank, 138 S. Ct. at 966–67). What the Court
squarely did not contemplate was putting equitable tolling to agency discretion. See Singh,
984 F.3d at 1150, 1154 (reading Guerrero-Lasprilla as setting to one side “mixed
question[s] about whether the facts found by the immigration judge [satisfy] the legal test,”
where courts must choose between de novo and some version of substantial-evidence
review, and to the other side “discretionary question[s],” which call for the abuse-of-
discretion standard); Mejia-Espinoza v. U.S. Att’y Gen., 846 F. App’x 140, 143 n.5 (3d Cir.
2021) (distinguishing “a mixed question of law and fact” considered in Guerrero-Lasprilla
from a “discretionary determination” (citation omitted)); cf. In re EuroGas, Inc., 755 F.
App’x 825, 831 (10th Cir. 2019) (legal, factual, mixed, and discretionary decisions pose
“distinct” questions and require courts to “apply[ ] the appropriate standard of review to
each”).
Consider also what courts (and agencies) mean when they speak of diligence for
equitable-tolling purposes. They do not contemplate diligence in “general[ ],” quotidian
terms but prescribe a “precise and elevated standard” an applicant must satisfy. Gonzalez
Galvan, 6 F.4th at 560. The applicant must demonstrate, based on the totality of the
circumstances, that he made a “reasonable” effort to pursue his claims in the face of
extraordinary obstacles standing in his way. Holland v. Florida, 560 U.S. 631, 653 (2010).
And if the applicant meets that standard, we are told he is “entitled to equitable tolling.”
Id. at 649 (emphasis added) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see
also, e.g., Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016).
26
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 27 of 69
That simply does not look like a determination left to agency discretion. See 8 U.S.C.
§ 1231(b)(2)(C) (the agency “may disregard” a noncitizen’s country of choice if “the
Attorney General decides that removing the alien to the country is prejudicial to the United
States”); id. § 1158(a)(1) (any noncitizen present in the United States “may apply for
asylum”); id. § 1255 (“the Attorney General may adjust the status of the alien” under
certain conditions); cf. 17 U.S.C. § 505 (“the court in its discretion may allow the recovery
of full costs”); Gall v. United States, 552 U.S. 38, 46 (2007) (because Sentencing
Guidelines are no longer mandatory, the district court has discretion in how to apply them).
A noncitizen’s entitlement to equitable tolling, in short, implicates a “matter of right,” not
“grace.” St. Cyr, 533 U.S. at 308.
When it comes to reviewing the BIA’s equitable-tolling rulings, then, our only
choice should be between de novo and substantial evidence, depending on whether we
think our review “entails primarily legal or factual work.” U.S. Bank, 138 S. Ct. at 967. 7
Those inquiries are not always “easy to separate,” Wainwright v. Witt, 469 U.S. 412, 429
(1985), but, on balance, we think de novo is a better fit. We begin with how U.S. Bank
itself characterizes legal decisionmaking: as “elaborating on a broad legal standard” and
7
Although Pennington, Maypa, Ott, and Warfaa all declared this Court should analyze
equitable tolling de novo because the question requires us to map facts onto a legal
standard, such general pronouncements appear wanting after U.S. Bank—all mixed
questions involve applying “a legal test” to “the historical facts.” U.S. Bank, 138 S. Ct. at
966. We must instead decide whether equitable tolling (and diligence in particular) calls
for primarily legal or factual determinations. Id. at 967. Because we have “never squarely
addressed th[at] issue”—not even in Ott or Warfaa, decided post-U.S. Bank—we do so
here. Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993); see also Fernandez v. Keisler,
502 F.3d 337, 343 n.2 (4th Cir. 2007).
27
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 28 of 69
“developing auxiliary legal principles of use in other cases.” 138 S. Ct. at 967. Because
equitable tolling was originally a concept fashioned by judges, see, e.g., Am. Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 558 (1974), our cases continue to “provide legal
interpretations” of the doctrine. Google LLC v. Oracle Am., Inc., 141 S. Ct. 1183, 1200
(2021) (concluding that copyright’s fair-use questions should be reviewed de novo after
U.S. Bank because the Court’s interpretations of that judge-made doctrine “still provide . . .
general guidance for future cases”). In this very case, the parties quarrel over when we
should start the diligence clock; they question the scope of the obligation a noncitizen’s
family has to research the law or hire a lawyer on the noncitizen’s behalf; they argue over
what level of vigilance we can fairly expect from a noncitizen who has lived in another
country for over a decade before the United States finally changed the law. “This type of
work is legal work.” Id. (“developing auxiliary legal principles” includes deciding that
“the scope of fair use is narrower with respect to unpublished works” and that “wholesale
copying aimed at creating a market substitute is presumptively unfair” (citations omitted)).
And to the extent our work involves incidental factual determinations, we are asked
to do no more here than in any other case that tasks courts with determining whether a
person acted reasonably in view of the totality of the circumstances—decisions courts have
historically made de novo. E.g., United States v. Arvizu, 534 U.S. 266, 275 (2002) (whether
police had “reasonable suspicion” to effectuate a stop); Elder v. Holloway, 510 U.S. 510,
513, 516 (1994) (whether an officer’s conduct “violate[s] clearly established statutory or
constitutional rights of which a reasonable person would have known” (citation omitted));
Johnson v. Am. United Life Ins. Co., 716 F.3d 813, 823 (4th Cir. 2013) (“whether a
28
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 29 of 69
reasonable person, with background and characteristics similar to the insured, would have
viewed the injury as highly likely to occur as a result of the insured’s intentional conduct”
(citation omitted)); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 411 (4th Cir.
2013) (whether “a reasonable person” would find supervisor behavior “objectively
offensive” so as to amount to battery); United States v. Jones, 678 F.3d 293, 299 (4th Cir.
2012) (whether “all the circumstances surrounding [a police] encounter” “would have
communicated to a reasonable person that the person was not free” to leave (citation
omitted)); Foretich v. Cap. Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir. 1994) (“whether
a defamation plaintiff is a limited-purpose public figure” (citations omitted)).
Also relevant is that the decision to deny equitable tolling was made by the BIA,
not the IJ. U.S. Bank explained that the appropriate standard of review “reflects which
‘judicial actor is better positioned’ to make the decision.” 138 S. Ct. at 967 (quoting Miller
v. Fenton, 474 U.S. 104, 114 (1985)); see also, e.g., Buford v. United States, 532 U.S. 59,
64 (2001) (rejecting de novo review where “the district court is in a better position than the
appellate court to decide whether a particular set of individual circumstances” meets the
legal test); Wainwright, 469 U.S. at 429 (juror bias presents a factual issue because the
court’s “predominant function in” resolving it “involves credibility findings whose basis
cannot be easily discerned from an appellate record”). The BIA held no hearing, took no
evidence, made no credibility determinations below. It merely read Williams’s motion and
the written declarations attached. We can conduct this analysis just as well.
Indeed, even where the BIA reviews an IJ’s equitable-tolling determination, it does
so “de novo,” In re Lugo-Resendez, 2017 WL 8787197, at *3 (BIA 2017), in keeping with
29
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 30 of 69
the agency’s “analytical approach to deciding cases,” which “focuses on the qualities of
adjudication that best suit the different decisionmakers,” Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,890 (Aug. 26,
2002). 8 We see no reason to abandon that approach at the courts of appeals, to
conceptualize as factual the same question the BIA deemed legal below.
We are finally comforted by the fact that the Supreme Court and other circuits
appear to approach equitable tolling as a matter of law. In Holland, the Court held the
district court’s “conclusion was incorrect” because the facts before it readily established
reasonable diligence. 560 U.S. at 653. Nowhere did the Court refer—much less defer—
to the lower courts’ rationales. See id. The Court simply determined for itself that Holland
acted with diligence. See id. at 671 (Scalia, J., dissenting) (lamenting the Court’s reach
because the court of appeals had no opportunity to pass on the question). More recently,
Menominee Indian Tribe denied equitable tolling because the “Tribe offere[d] no
circumstances” that were “both extraordinary and beyond its control.” 577 U.S. at 257
8
Following Lugo-Resendez, we would likely reverse the BIA even under the abuse-of-
discretion standard. There, the BIA held “equitable tolling of the reopening deadline [was]
appropriate” even though a noncitizen did not discover a change in the law until two years
after the Supreme Court promulgated its decision (as compared to Williams’s one) and then
waited an additional two months to ask to reopen after his discovery (again, as compared
to Williams’s one). 2017 WL 8787197, at *3. And still the BIA excused the delay—
thirteen years overall—because the noncitizen “was unaware that the law affecting his
removability could change,” “no one in his family has attended law school or become an
attorney, he was unable to follow legal developments in the United States” after he was
removed to Mexico, and he could not “afford to regularly consult with an attorney.” Id.
Without explanation, the BIA reached the opposite result here. That falls far short of the
kind of “reasoned decisionmaking” an agency must engage in. Judulang v. Holder, 565
U.S. 42, 53 (2011).
30
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 31 of 69
(emphasis omitted). Once again, the Court said nothing about deferring to a lower court’s
determination on this question. See id. Several circuit courts have followed that same path.
See Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006) (holding “the BIA erred” in determining
the motion to reopen time-barred); Fernandez Taveras v. U.S. Att’y Gen., 842 F. App’x
762, 763 n.1 (3d Cir. 2021) (applying “the equitable tolling standard ‘to undisputed or
established facts’” “de novo” (quoting Nkomo v. U.S. Att’y Gen., 986 F.3d 268, 272 (3d
Cir. 2021))), cert. denied sub nom. Taveras v. Garland, 142 S. Ct. 771 (2022); Zaldivar
Anzardo v. U.S. Att’y Gen., 835 F. App’x 422, 426 (11th Cir. 2020) (characterizing
“equitable tolling” as a “question[ ] of law”); Guerrero-Lasprilla, 822 F. App’x at 256
(concluding the “BIA did not err” in denying equitable tolling because “an uncertain legal
landscape” did not constitute “an extraordinary circumstance” (quoting Menominee Indian
Tribe, 557 U.S. at 258)). And we ourselves have required de novo review for analogous
questions, including whether maltreatment an immigrant suffers amounts to torture,
whether a government’s response to that torture constitutes acquiescence, whether an
immigrant will experience extreme hardship upon being deported, and whether an
immigrant entered into a marriage in good faith. See Cruz-Quintanilla, 914 F.3d at 890;
Upatcha v. Sessions, 849 F.3d 181, 186 (4th Cir. 2017); Gonzales Galvan, 6 F.4th at 561.
Those questions appear to us indistinguishable in any material respect from the BIA’s
equitable-tolling determination below. 9
9
The government protests Upatcha and Cruz-Quintanilla concerned the standard of review
the BIA applies to the IJ’s decisions, not the standard by which appellate courts review the
BIA. But as we already explained, we find it difficult to understand why the same question
would be legal before the BIA but factual or discretionary before the courts of appeals.
31
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 32 of 69
We thus hold that the BIA’s decision to deny equitable tolling presents a mixed
question we must review de novo. And as always, we review the lone subsidiary, factual
issue—whether Williams’s attorney represented him pro bono—for substantial evidence.
IV.
The last preliminary question we must decide is whether the statutory time and
number limitations on motions for reconsideration can be tolled at all. In Holland, the
Court held that “AEDPA’s statutory limitations period can be tolled for equitable reasons.”
560 U.S. at 645. Without setting forth any rigid factors, the Court observed that the
provision “is not jurisdictional,” it “does not contain language that is ‘unusually
emphatic,’” does not provide a “particularly long” limitations period, and that equitable
tolling would not “undermine[ ] AEDPA’s basic purposes.” Id. at 645, 647–48 (citations
omitted). Those are equally true of § 1229a(c)(6). Nothing in the INA “set[s] forth ‘an
inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Id. at 645 (citation
omitted). The language is not emphatic—§ 1229a(c)(6) states just once that noncitizens
must file within thirty days of the final removal order. The time to file is much shorter
than AEDPA’s one-year period. And, as this very case illustrates, there are good reasons
to equitably toll both the time and number limitations to accommodate changes in the U.S.
immigration law that would allow noncitizens to reunite with their families.
Even more to the point, this Court has already permitted the BIA to equitably toll
the ninety-day deadline to file a motion to reopen. See Kuusk v. Holder, 732 F.3d 302, 305
(4th Cir. 2013). The statutory text addressing motions to reopen and reconsider is
32
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 33 of 69
functionally identical. Compare 8 U.S.C. § 1229a(c)(6)(B) (the motion to reconsider
“must be filed within 30 days of the date of entry of a final administrative order of
removal”), with id. § 1229a(c)(7)(C)(i) (“the motion to reopen shall be filed within 90 days
of the date of entry of a final administrative order of removal”). And the government agrees
we should treat them the same. See Resp. Br. 17 n.2. So do other circuits. See Lona v.
Barr, 958 F.3d 1225, 1230 (9th Cir. 2020); Gonzales-Alarcon v. Macias, 884 F.3d 1266,
1270 (10th Cir. 2018); see also Lugo-Resendez v. Lynch, 831 F.3d 337, 343 (5th Cir. 2016)
(tolling numeric limitations); Singh v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) (same);
Zhao, 452 F.3d at 159–60 (same). We join in this understanding and hold the statutory
time and number limitations for motions to reconsider subject to equitable tolling.
V.
With those background principles in mind, we turn, finally, to the merits of
Williams’s claim. Noncitizens seeking equitable tolling must demonstrate they “ha[ve]
been pursuing [their] rights diligently” but “extraordinary circumstances beyond [their]
control made it impossible to file within the statutory deadline.” Lawrence, 826 F.3d at
204 (citations omitted). That is a high bar, to be sure, making tolling available “‘only
sparingly,’ not in ‘a garden variety claim of excusable neglect.’” Kuusk, 732 F.3d at 306
(quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)). But it is not
“insurmountable.” Warfaa, 1 F.4th at 294. A noncitizen needs to act only with
“reasonable,” “not maximum feasible diligence.” Holland, 560 U.S. at 653 (citations
omitted). We readily conclude that Williams has done just that.
33
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 34 of 69
As our starting point, we consider the proper point in time from which to measure
Williams’s diligence. In 2010, the Supreme Court held that “violent force” means “force
capable of causing physical pain or injury.” Johnson, 559 U.S. at 139–40. Applying
Johnson that same year, the BIA ruled that a Va. Code Ann. § 18.2-57 conviction no longer
qualified as an aggravated felony under § 16(a) because it comprised the “slightest
touching of another.” Velasquez, 25 I. & N. Dec. at 281 (citation omitted). But the agency
had found Williams committed an aggravated felony under both §§ 16(a) and (b). So it
was not until 2018, when the Court struck § 16(b) as unconstitutionally vague, that
Williams became entitled to relief. See Dimaya, 138 S. Ct. at 1223. In denying equitable
tolling below, however, the BIA alluded multiple times to Williams’s obligation to
“regularly [seek] out pro bono counsel.” A.R. 5; see also id. (faulting Williams for failing
to seek “assistance from pro bono counsel prior to, or soon after” Dimaya (emphasis
added)). The BIA thus appeared to base its diligence ruling at least in part on Williams’s
conduct before 2018. With that we cannot agree—before 2018, Williams had no “rights”
to pursue. See Holland, 560 U.S. at 649 (clarifying that equitable tolling asks whether a
petitioner “has been pursuing his rights diligently” (emphasis added) (citation omitted)).
The government protests we cannot avoid Lawrence, which observed that a
noncitizen must “demonstrate that he acted with due diligence during the entire period he
[seeks] to toll.” 826 F.3d at 205 (cleaned up) (discussing Rashid v. Mukasey, 533 F.3d 127
(2d Cir. 2008)). But the government places more weight on that quotation than it can bear:
The same paragraph that cited Rashid considered only whether Lawrence showed diligence
“during the two years after” the Supreme Court changed immigration law and “the year-
34
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 35 of 69
and-a-half after he contacted” the lawyer about that legal change. Id. at 204–05. Nowhere
did we discuss Lawrence’s conduct before the Supreme Court’s ruling—that is, before
Lawrence became entitled to cancellation of removal—or intimate we would do so in future
cases.
Unscrupulous reliance on Rashid is all the more unconvincing because Rashid did
not deal with a change in the law but with ineffective assistance of counsel. That type of
claim lends itself to a different analysis: Although in some cases, it will be truly beyond a
noncitizen’s ken to understand counsel’s inadequacy, in most circumstances, courts are
right to ask whether a noncitizen at least “follow[ed] up with his attorney after the DHS
decision” or tried to “obtain new counsel” because doing so might have helped uncover the
inadequacy early on. Rashid, 533 F.3d at 133. Yet visiting additional attorneys before
2018 would not have helped Williams. In 2006, he argued three times to the IJ and the
BIA that his conviction should not be classified as an aggravated felony because “use of
force is not an element” of Va. Code Ann. § 18.2-57. A.R. 320 (original proceedings before
the IJ); see also id. at 97 (defending the IJ’s ruling that the Virginia statute “did not comport
with the requirements under federal law defining a crime of violence” on government’s
appeal to the BIA); id. at 80 (reasoning that “use of force must be an element of the crime
and the Virginia Statute text is unambiguous that force is not listed as an element” on first
motion for reconsideration to the BIA). That is the exact argument the Supreme Court
would finally accept in 2010. But in 2006, the BIA turned Williams down twice. As did
this Court. See Williams, 234 F. App’x at 114 (denying his petition).
35
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 36 of 69
In the end, even Rashid acknowledged the diligence inquiry centers on when a
noncitizen “knew or should have known” of his rights. 533 F.3d at 132. That is a
functional test. We do not ask, in a vacuum, whether Williams should have contacted X
number of attorneys over the twelve years he spent in Jamaica, but whether he “reasonably
should have” discovered Dimaya before 2019. Zhao, 452 F.3d at 158, 159; accord
Holland, 560 U.S. at 649. Taking stock of the totality of the circumstances Williams
presented, the answer to that question is no.
The Board opined Williams could have discovered his eligibility sooner had he
“regularly” sought the advice of a pro bono attorney. A.R. 5. Because Williams learned
of Dimaya only a year after the Court issued the decision, the Board must have required
Williams to consult with an attorney more “regularly” than that. But recall that, even when
Williams lived in the United States, he had trouble securing a pro bono attorney—and the
IJ recognized as much, granting him four requests for continuance. And Person ultimately
felt compelled to spend the little money she had to pay an attorney—we agree here with
Williams that substantial evidence does not support the BIA’s conclusion that the attorney
acted pro bono, see id. at 9 (showing she checked “no” next to acting “pro bono” when
entering her appearance). Expecting Williams to have secured a pro bono attorney so often
as to discover Dimaya before 2019 is not reasonable. Nor is expecting him to “maintain[ ]
contact with” the attorney who represented him in 2006—an alternative the BIA advised.
Id. at 5. That attorney ended his representation in 2007, before Williams could even
petition this Court to review the BIA’s original removal decision. Williams had no reason
to think he would renew his representation after Williams was deported.
36
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 37 of 69
Accepting the difficulties of finding pro bono representation, the government
suggests Williams could have hired an attorney. But again, by the time Dimaya came out
in 2018, Williams had been in Jamaica for eleven years. So, to successfully discover
Dimaya sooner than 2019, Williams would had to have hired an attorney more than once
per year throughout those years. Yet Williams makes only a few dollars a week after room
and board. He has no access to the Internet. The government’s suggestion simply cannot
be squared with the realities of Williams’s life. And not even the BIA demanded that.
The BIA did, however, fault Williams’s wife for failing to “stay informed on the
status of the law,” “even considering [the] family’s low income.” Id. For one, the BIA
cited no law (and we find none) that would allow us to impute her conduct to Williams.
For another, the BIA misunderstood the nature of the relationship between them. The pair
has two children together, ages twenty and seventeen, but Person has two other children,
ages sixteen and fourteen, who are “stepchildren” to Williams. Id. at 24, 27. The couple
thus did not have the continuous relationship the BIA presumed. And in any event, Person
is not an attorney. She does not know how to conduct legal research. And she makes only
$20,000 per year, which goes to support her four children, to manage her lung disease, and
to make occasional trips to Jamaica so that Williams’s children can see their father. We
cannot agree it was reasonable for Person to stay abreast of immigration law for eleven
years—and do so with such frequency that she would have discovered Dimaya before
2019.
The government finally asks us not to consider the meeting with the attorney in 2019
at all, calling it a fortuitous happenstance. Person, the government suggests, retained the
37
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 38 of 69
attorney because she thought Williams might be able to return to the United States now
that they were married rather than as part of some periodic check on the status of
immigration law. But a noncitizen can certainly hire an attorney to both check on how his
legal status has changed following a marriage and how the legal landscape itself has
changed. We decline to trample on attorney-client privilege by scrutinizing what was said
in the meeting and what possible grounds for cancellation of removal Person advanced.
Nor do we find anything nefarious in that Person sought out counsel after her lungs
deteriorated. Finally obtaining “good legal advice” upon a change in personal
circumstances “does not mean [Williams] was dilatory for failing to obtain such advice
sooner”; “there is a difference between diligence and desperation.” Gordillo v. Holder,
640 F.3d 700, 706 (6th Cir. 2011).
On top of that, Williams has been exceedingly diligent after he learned of Dimaya.
His attorney filed for reconsideration just one month after receiving Williams’s records
from the DHS under the Freedom of Information Act. Even though diligence after
discovery is not determinative, as Williams would have us hold, it still demonstrates
Williams did not sleep on his rights. Compare Sun v. Mukasey, 555 F.3d 802, 806 (9th
Cir. 2009) (granting petition largely because the applicant “acted with admirable diligence
after retaining new counsel,” even where years went by after initial ineffective assistance
of counsel), with Wang v. Bd. of Immigr. Appeals, 508 F.3d 710, 715 (2d Cir. 2007)
(faulting an immigrant for waiting several months to file a motion to reconsider after he
found out about a change in the law). At bottom, Williams’s rights hinged on complicated,
multistep decisions handed down by the Supreme Court, not “garden variety” attorney
38
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 39 of 69
negligence Williams could have easily discovered on his own. See Holland, 560 U.S. at
652 (citation omitted). Still, he discovered his rights just one year after the Court
enunciated them. Giving “due consideration to the reality that many departed aliens are
poor, uneducated, unskilled in the English language, and effectively unable to follow
developments in the American legal system,” Lugo-Resendez, 831 F.3d at 345, we hold
Williams could not “reasonably have been expected to have filed earlier.” Pervaiz v.
Gonzales, 405 F.3d 488, 490 (7th Cir. 2005) (Posner, J.); accord Sun, 555 F.3d at 806 (two-
year delay did not evidence “lack of due diligence” under the circumstances). We
accordingly vacate the BIA’s diligence ruling.
* * *
Because the BIA determined Williams not diligent, it did not consider whether
Johnson and Dimaya presented an extraordinary circumstance that would warrant equitable
tolling. In previous cases, the BIA has held that Supreme Court decisions that significantly
change the legal landscape meet this bar. See Lugo-Resendez, 2017 WL 8787197, at *1,
*3 (discussing Lopez v. Gonzalez, 549 U.S. 47 (2006), which held that the noncitizen’s
drug offense no longer qualified as an aggravated felony); In re G-D-, 22 I. & N. Dec.
1132, 1135 (BIA 1999) (characterizing “a fundamental change in the principles of the law”
as an “exceptional” circumstance warranting sua sponte reopening); see also Lona, 958
F.3d at 1230 (“The BIA may equitably toll this statutory filing deadline, including in cases
where the petitioner seeks excusal from untimeliness based on a change in the law that
invalidates the original basis for removal.”). Still, the “ordinary” rule demands we remand
to the BIA to decide this issue in the first instance, INS v. Orlando Ventura, 537 U.S. 12,
39
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 40 of 69
18 (2002), and the parties do not oppose that course. We thus remand to the BIA to decide
whether the legal changes in Johnson and Dimaya constitute extraordinary circumstances
and whether, on the whole, Williams’s request to reconsider merits a favorable exercise of
discretion. But we caution, as other courts have done before us, that denial of equitable
tolling here would create a “particularly serious” concern, as it would preclude Williams
from seeking cancellation of removal “when it is evident that the basis for his removal is
now invalid.” Lugo-Resendez, 831 F.3d at 345. 10
VI.
For the foregoing reasons, we GRANT the petition, VACATE the judgment of the
BIA, and REMAND the case for further proceedings consistent with this opinion.
10
In alternative, Williams asks that we hold the BIA legally erred in declining to reconsider
sua sponte under 8 C.F.R. § 1003.2(a). The government objects we have no jurisdiction to
review committed to agency discretion by law because “there are no meaningful standards
for courts to apply in review.” Mosere v. Mukasey, 552 F.3d 397, 401 (4th Cir. 2009). But
whether Mosere applies to legal errors “underlying” the BIA’s exercise of “its sua sponte
power” is a question we expressly left open in Lawrence, 826 F.3d at 207 n.5, in 2016.
Because we agree with Williams on equitable tolling, we do not decide this question. We
note, however, that at least seven of our sister circuits recognize jurisdiction to review such
legal errors. See Thompson v. Barr, 959 F.3d 476, 483 (1st Cir. 2020); Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. U.S. Att’y Gen., 642 F.3d 155, 160 (3d Cir.
2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir. 2018); Fuller v.
Whitaker, 914 F.3d 514, 519 (7th Cir. 2019); Bonilla v. Lynch, 840 F.3d 575, 586–88 (9th
Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d 1295, 1300 (10th Cir. 2020).
40
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 41 of 69
RUSHING, Circuit Judge, dissenting:
The majority tasks itself with deciding three threshold questions of law in this case:
(1) whether the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(C) applies to a petition seeking
review of a Board of Immigration Appeals decision denying reconsideration of a prior
removal order; (2) under what standard we review a Board decision denying equitable
tolling of the limits on motions to reconsider for lack of diligence; and (3) “whether the
statutory deadline for a motion to reconsider can be equitably tolled at all.” Supra, at 8.
Only the last question is actually open in our Circuit. Prior decisions have conclusively
answered the jurisdictional question and set the standard of review. Yet the majority
purports to resolve these questions anew in contradiction of our precedent as well as that
of the Supreme Court and our sister courts of appeals. I respectfully dissent.
By way of background, federal law allows a noncitizen to file one motion to
reconsider within 30 days of a final order of removal. 8 U.S.C. § 1229a(c)(6). Petitioner
filed his second motion to reconsider 12 years and 10 months after the Board issued his
final order of removal. He asked the Board to equitably toll the time and number
limitations, which required him to show that he had been diligently pursuing his rights.
Petitioner admitted that he did “not do anything for the previous twelve years or so” since
he was removed. A.R. 25. But he stated that his wife contacted an attorney once, in April
2019. As a result, Petitioner learned that his assault conviction no longer qualified as an
aggravated felony due to intervening Board and judicial decisions and that he might be
eligible to apply for cancellation of removal. After this discovery, Petitioner claimed, he
diligently sought relief. The Board denied Petitioner’s request for equitable tolling and so
41
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 42 of 69
necessarily denied his motion to reconsider as time- and number-barred. It also denied sua
sponte reopening. See 8 C.F.R. § 1003.2(a) (2020).
Petitioner asks us to vacate the Board’s decisions based on our own reassessment of
his diligence, including what he claims is a factual misstatement by the Board. But
Petitioner recognizes that 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review
questions of fact because, in addition to his assault conviction, he was also removable for
having committed multiple “crimes involving moral turpitude,” 8 U.S.C.
§ 1227(a)(2)(A)(ii). To avoid this jurisdictional limitation, Petitioner urges us to reverse
the 2006 moral turpitude ruling against him, despite his failure to exhaust his challenge to
that ruling before the Board. Acknowledging the “perhaps insurmountable hurdle” erected
by Petitioner’s failure to exhaust, the majority declines to resolve his argument. Supra, at
17 n.6.
Instead, the majority issues a sweeping ruling neither advanced nor briefed by either
party: It holds that Section 1252(a)(2)(C)’s jurisdictional bar does not apply to petitions
for review of the Board’s denial of reconsideration or reopening because those decisions
are not “final order[s] of removal.” Undoubtedly, no party made this argument because
our Court has already held the opposite, as have all the other courts of appeals to consider
the question. By changing course, the majority today creates a lopsided 1-to-10 circuit
split.
The majority then reviews the Board’s equitable tolling determination de novo. But
our cases have consistently reviewed the Board’s equitable tolling decisions—including its
due diligence assessments—under a more deferential abuse-of-discretion standard.
42
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 43 of 69
Applying the correct standard here, the Board did not abuse its discretion in denying
reconsideration based on the arguments and evidence Petitioner presented to the Board.
And, as we have also held in previous decisions, we lack jurisdiction to review the Board’s
denial of sua sponte reopening. Accordingly, I would deny the petition for review in part
and dismiss in part.
I.
The Immigration and Nationality Act (INA) provides for judicial review of “a final
order of removal” against a noncitizen. 8 U.S.C. § 1252(a). Section 1252(a)(2)(C),
however, forbids any court from reviewing “any final order of removal against an alien
who is removable by reason of having committed” certain crimes, including aggravated
felonies and crimes involving moral turpitude. Subparagraph (D) explains that courts
nevertheless retain jurisdiction to consider “constitutional claims or questions of law” in
such instances. Id. at § 1252(a)(2)(D). Practically speaking, then, subparagraph (C)
forbids “appeals of factual determinations.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
1073 (2020).
We have jurisdiction to review so-called “mixed questions” of law and fact. Id. at
1069. Everyone agrees that applying the legal standard for equitable tolling to undisputed
or established facts is a such a question. And everyone agrees that subparagraph (C) denies
us jurisdiction to review questions of fact in a petition from the Board’s final order of
removal against a criminal noncitizen. But the majority contends that subparagraph (C)
does not apply to petitions from the Board’s decision declining to reconsider its removal
order against the same criminal noncitizen because the decision denying reconsideration is
43
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 44 of 69
not itself a “final order of removal” within the meaning of the INA. Precedent from all
corners refutes that conclusion. And even if it were an open question, the majority’s
analysis is incorrect.
A.
It is well settled that Board decisions denying reopening or reconsideration are
treated as final orders of removal in Section 1252(a), including for purposes of
subparagraph (C)’s jurisdictional bar. The Supreme Court’s decisions compel this
conclusion. Our Court has so held. And our sister circuits have “uniformly” agreed.
Musangu v. Holder, 517 Fed. App. 166, 168 (4th Cir. 2013).
The Supreme Court has long held that “jurisdiction to review ‘final order[s] of
removal’” in Section 1252(a)(1) “encompasses review of decisions refusing to reopen or
reconsider such orders.” Reyes Mata v. Lynch, 576 U.S. 143, 147 (2015). When the Board
issues a deportation order and then later denies a motion to reconsider that order, “two
separate final orders” exist that a court of appeals has jurisdiction to review. Stone v. INS,
514 U.S. 386, 395 (1995). Accordingly, “this Court and our sister circuits have
traditionally interpreted ‘final order of deportation’ . . . to include a BIA order denying a
motion to reopen” or reconsider. Stewart v. INS, 181 F.3d 587, 593 (4th Cir. 1999).
This understanding of “final order of removal” in Section 1252(a)’s jurisdictional
grant applies equally to the same phrase in subparagraph (C)’s jurisdictional restriction.
Indeed, that is the entire premise of the Supreme Court’s decision in Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062 (2020). The petitioners in that case were removed from the country
after committing drug crimes specified in subparagraph (C). After the time for seeking
44
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 45 of 69
reconsideration or reopening had passed, the petitioners asked the Board to reopen their
removal proceedings because intervening judicial and Board decisions had rendered them
eligible for discretionary relief. The Board denied the petitioners’ requests for equitable
tolling, concluding that they had failed to demonstrate due diligence. Id. at 1067. As the
Supreme Court explained, “in this kind of immigration case (involving aliens who are
removable for having committed certain crimes), a court of appeals may consider only
‘constitutional claims or questions of law.’” Id. at 1068 (quoting 8 U.S.C.
§ 1252(a)(2)(D)). In other words, subparagraph (C) prevented review of factual questions
even though the petitioners sought review of the denial of their motions to reopen instead
of their original removal orders. As the Court confirmed, in those cases, the statute “still
forbid[s] appeals of factual determinations.” Id. at 1073.
We have reached the same conclusion expressly in a similar case. Much like this
case, the petitioner in Lawrence v. Lynch moved to reopen his removal proceedings out of
time in order to seek cancellation of removal after an intervening judicial decision. 826
F.3d 198, 202 (4th Cir. 2016). The Board denied equitable tolling, concluding that the
petitioner failed to show due diligence. Id. In assessing our jurisdiction over the petition,
we noted that—just as in this case—even if the petitioner’s crimes no longer constituted
aggravated felonies, he remained removable based on his crimes involving moral turpitude.
Id. at 203. “The jurisdictional bar of § 1252(a)(2)(C),” we explained, “therefore precludes
our exercising jurisdiction over anything but ‘constitutional claims or questions of law.’”
Id. (quoting 8 U.S.C. § 1252(a)(2)(D)). It made no difference that the petition sought
review of the Board’s denial of reopening based on equitable tolling rather than the Board’s
45
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 46 of 69
original removal order from years earlier. Subparagraph (C) applied because the petitioner
was “removable by reason of having committed” crimes involving moral turpitude. 8
U.S.C. § 1252(a)(2)(C). That decision squarely applies here.
The majority ignores this aspect of Lawrence and instead claims support from a
decision interpreting a different statutory provision. In Obioha v. Gonzales, 431 F.3d 400,
406 (4th Cir. 2005), we interpreted Section 1252(a)(2)(B)(i) “to preclude review only
where the basis for the [Board’s] discretionary decision addresses the merits of an
enumerated provision” in that statute. But see Patel v. Garland, 142 S. Ct. 1614, 1622
(2022) (explaining this provision encompasses judgments “of whatever kind,” “not just
discretionary judgments,” and any judgment “relating to the granting of relief”). The
majority extends a version of that reasoning to subparagraph (C), holding that we have
jurisdiction to consider “a factual challenge unrelated to the merits of the final removal
order.” Supra, at 17 (internal quotation marks omitted). But this analysis begins from the
erroneous premise that “final order[s] of removal” does not encompass decisions denying
reconsideration, a matter Obioha had “no need to consider.” Rangolan v. Mukasey, 302
Fed. App. 133, 136, 137 n.2 (4th Cir. 2008) (noting that “our decision in the case at hand”—
that subparagraph (C) “necessarily restricts our review of a denial of a criminal alien’s
motion to reopen removal proceedings to constitutional and legal questions”—“does not in
any way conflict with our recent holding in Obioha”). As the Supreme Court has
explained, “[s]ubparagraph (B) bars review of only one facet of the removal process
(consideration of discretionary relief) whereas subparagraph (C) prohibits review of the
entire proceeding (removal based on a criminal offense).” Patel, 142 S. Ct. at 1625–1626.
46
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 47 of 69
The majority’s effort to curtail subparagraph (C) to forbid review only of factual
challenges related to the merits of the original removal order cannot be reconciled with
Lawrence or Guerrero-Lasprilla. In Lawrence, we held that subparagraph (C) precluded
our review of “the Board’s factual determination[s]” regarding “due diligence” made “in
conducting the equitable tolling inquiry.” 826 F.3d at 203 (internal quotation marks
omitted). We could hardly have been clearer that subparagraph (C) includes all factual
challenges, whether related to the original removal order or, as in that case, not related. 1
Likewise in Guerrero-Lasprilla. The petitioners there also sought review of the Board’s
equitable tolling decisions, but the Supreme Court stated that subparagraph (C) prevented
review of factual claims without considering it relevant that facts concerning due diligence
are unrelated to the merits of the original removal order. Guerrero-Lasprilla, 140 S. Ct. at
1067–1068, 1073.
Every other circuit to consider this question has applied subparagraph (C) to
petitions for review of Board decisions denying reconsideration or reopening. See, e.g.,
Boakai v. Gonzales, 447 F.3d 1, 4 (1st Cir. 2006); Durant v. INS, 393 F.3d 113, 115–116
(2d Cir. 2004), as amended (Feb. 1, 2005) (Sotomayor, J.); Cruz v. Att’y Gen., 452 F.3d
1
Cucalon v. Barr, 958 F.3d 245 (4th Cir. 2020), on which the majority relies, see supra, at
10–11, also does not support their reformulation. That case concerned whether a certain
Virginia crime was an aggravated felony—a legal question that we recognized as falling
within subparagraph (D)’s jurisdictional grant. See Cucalon, 958 F.3d at 249. In his
motion to reconsider, the petitioner raised additional legal arguments in support of his
claim. We agreed with the Board that those new arguments were waived and that, in any
event, they would not change our legal conclusion that the Virginia statute was divisible.
Id. at 254. We did not at all suggest that we could review the Board’s factual findings on
reconsideration because they were “collateral factual matters.” Supra, at 10.
47
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 48 of 69
240, 246–247 (3d Cir. 2006); Assaad v. Ashcroft, 378 F.3d 471, 474–475 (5th Cir. 2004);
Pepaj v. Mukasey, 509 F.3d 725, 726, 728 (6th Cir. 2007); Dave v. Ashcroft, 363 F.3d 649,
652 (7th Cir. 2004); Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir. 2008); Sarmadi v. INS,
121 F.3d 1319, 1321–1322 (9th Cir. 1997); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th
Cir. 2004); Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1261–1262 (11th Cir. 2003). Until
today, our Court has acknowledged, and followed, this uniform line of authority. See
Musangu, 517 Fed. App. at 168 (“Circuit courts have uniformly held that the prohibition
against reviewing final orders of removal when the alien is removable for having been
convicted of an aggravated felony or other criminal offense extends to denial of motions
to reopen.”); Rangolan, 302 Fed. App. at 136–137 (observing that the “courts of appeals
that have considered this jurisdictional issue have reached the identical conclusion” that
subparagraph (C) “restricts our review of a denial of a criminal alien’s motion to reopen
removal proceedings to constitutional and legal questions”).
No other circuit has embraced the majority’s view. None of the decisions the
majority cites from other circuits holds that subparagraph (C) does not apply to petitions
from the denial of reconsideration or reopening or to “collateral” factual questions raised
in those petitions. Supra, at 10, 15–16. In Agonafer v. Sessions, the Ninth Circuit
recognized that subparagraph (C) applied to a petition from the denial of reopening but
discussed two exceptions to the jurisdictional bar: the subparagraph (D) exception for
constitutional claims and questions of law and an exception created by caselaw in that
circuit for “a denial of CAT relief on the merits.” 859 F.3d 1198, 1202 (9th Cir. 2017)
(internal quotation marks omitted). Even further afield, the Fifth Circuit in Diaz v. Sessions
48
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 49 of 69
confronted a constitutional claim of ineffective assistance of counsel and determined that
subparagraph (D) gave it jurisdiction over that claim, including “factual disputes that are
necessary” to review the constitutional claim, but no others. 894 F.3d 222, 227 (5th Cir.
2018).
And in Durant v. INS, the Second Circuit squarely held that “when an alien has been
ordered removed because of a conviction for one of the offenses specified in
§ 1252(a)(2)(C), the jurisdictional bar imposed by this section also applies to an order
denying a motion to reopen removal proceedings.” 393 F.3d at 114. Nothing about that
decision hinged on whether the reasons for the Board’s denial of reopening were related to
the original removal order. To the contrary, the court “held that orders denying motions to
reopen removal proceedings were ‘sufficiently connected’ to final orders of removal that
the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(C) applied” categorically to orders denying
motions to reopen or reconsider. Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005)
(Sotomayor, J.) (quoting Durant, 393 F.3d at 115). We are indeed “alone” in holding to
the contrary. Supra, at 15.
B.
Even if the applicability of subparagraph (C)’s jurisdictional bar were an open
question in this Circuit, the answer would be the same. As a reminder, the statute provides
that “no court shall have jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed” certain specified crimes. 8 U.S.C.
§ 1252(a)(2)(C). In the INA, “jurisdiction to review ‘final orders[s] of removal’ . . .
encompasses review of decisions refusing to reopen or reconsider such orders.” Reyes
49
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 50 of 69
Mata, 576 U.S. at 147 (quoting 8 U.S.C. § 1252(a)(1)). As it is for the grant of jurisdiction
over “final order[s] of removal” in Section 1252(a)(1), so it is for the limit on jurisdiction
over “final order[s] of removal” in subparagraph (C). See Guerrero-Lasprilla, 140 S. Ct.
at 1068. “‘[I]t is a normal rule of statutory construction that identical words used in
different parts of the same act are intended to have the same meaning.’” Pereira v.
Sessions, 138 S. Ct. 2105, 2115 (2018) (quoting Taniguichi v. Kan Pacific Saipan, Ltd.,
566 U.S. 560, 571 (2012)). That “natural presumption” is warranted here, where the phrase
is repeated within the same statutory subsection and in both instances describes the object
of judicial review. Env’t Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007) (internal
quotation marks omitted).
This cohesive understanding of the jurisdictional statute makes sense given the close
connection between an original removal order and a subsequent motion to reopen or
reconsider. After all, both motions seek to undo the prior removal order. See 8 U.S.C.
§ 1229a(c)(6) & (7); Dada v. Mukasey, 554 U.S. 1, 12 (2008) (“A motion to reopen . . .
asks the Board to change its decision . . . .” (internal quotation marks omitted)). Unlike a
CAT order, which “does not affect the validity of a final order of removal,” Nasrallah v.
Barr, 140 S. Ct. 1683, 1694 (2020), the very purpose of a motion to reopen or reconsider
is to invalidate a prior removal order.
The majority’s conclusion that Board decisions denying reopening or
reconsideration are excluded from the phrase “final order[s] of removal” in Section 1252
not only contradicts Reyes Mata and Stone, see supra, at 44, it also creates uncertainty
throughout the jurisdictional statute. For example, the majority assures us that courts have
50
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 51 of 69
jurisdiction to review petitions from decisions denying reopening or reconsideration even
without the affirmative grant of jurisdiction in Section 1252(a)(1). See supra, at 14–15 &
n.5. But excluding those decisions from the scope of that section has additional
consequences. Section 1252(a)(1) not only grants jurisdiction, it also restricts judicial
review of “a final order of removal” to “chapter 158 of Title 28, except as provided in
subsection (b) and except that the court may not order the taking of additional evidence
under section 2347(c) of such title.” 8 U.S.C. § 1252(a)(1). Under the majority’s approach,
those limitations apparently would not apply to judicial review of decisions denying
reopening or reconsideration. Similarly, a petition for judicial review of “an order of
removal under subsection (a)(1)” must be filed within 30 days of “the final order of
removal.” 8 U.S.C. § 1252(b)(1). If decisions denying reopening or reconsideration are
not among these final orders of removal, then this “jurisdictional” filing deadline does not
apply to petitions seeking review of those decisions. Stone, 514 U.S. at 405. The Supreme
Court and our precedent, however, foreclose that interpretation. See id. at 405–406
(explaining that a noncitizen may seek judicial review of the denial of reconsideration
within the statutory time limit); see, e.g., Tebonou v. Garland, 847 Fed. App. 190, 191 (4th
Cir. 2021) (dismissing petition for review of order denying motion to reopen as untimely);
Mota-Braga v. Barr, 831 Fed. App. 629, 629 (4th Cir. 2020) (same); Mburu v. Barr, 812
Fed. App. 166, 166–167 (4th Cir. 2020) (same); Martinez-Saenz v. Sessions, 720 Fed. App.
171, 172 (4th Cir. 2018) (same); Paglinawan v. Holder, 564 Fed. App. 736, 737 (4th Cir.
2014) (same as to order denying motions to reopen and reconsider).
51
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 52 of 69
The majority invokes the “presumption favoring judicial review of administrative
action,” supra, at 14 (internal quotation marks omitted), but that presumption has no place
here. “Because ‘executive determinations generally are subject to judicial review,’ we
presume that review is available when a statute is silent.” Patel, 142 S. Ct. at 1627 (quoting
Guerrero-Lasprilla, 140 S. Ct. at 1069). Section 1252(a)(2)(C), however, is not silent. It
expressly strips courts of jurisdiction to review any final order of removal against a
criminal noncitizen, and “evidence ‘drawn from the statutory scheme as a whole’”
demonstrates that restriction includes orders denying reopening or reconsideration of a
prior removal order. Id. at 1627 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349
(1984)).
Finally, the majority asserts that this issue concerns the separation of powers
between the three branches of our federal government. It does, but not in the way the
majority believes. The majority quotes Kucana v. Holder, expressing concern about courts
“‘plac[ing] in executive hands authority to remove cases from the Judiciary’s domain.’”
Supra, at 14 (quoting 558 U.S. 233, 237 (2010)). In Kucana, the Supreme Court addressed
whether the prohibition on judicial review of discretionary action in Section
1252(a)(2)(B)(ii) applied “not only to Attorney General determinations made discretionary
by statute, but also to determinations declared discretionary by the Attorney General
himself through regulation.” 558 U.S. at 237. Nothing about the issue before us, however,
52
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 53 of 69
implicates the Executive in constraining judicial review. 2 Instead, we confront a situation
where Congress has by statute reduced our jurisdiction over certain immigration matters.
“A statute affecting federal jurisdiction ‘must be construed both with precision and with
fidelity to the terms by which Congress has expressed its wishes.’” Id. at 252 (quoting
Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968)); see also Stone, 514 U.S. at 405. It is
the majority who transgresses the separation of powers by expanding its own jurisdiction
contrary to Congress’s direction.
II.
Next, the majority questions which standard governs our review of the Board’s
decision denying equitable tolling on a motion to reopen or reconsider. A petitioner
seeking equitable tolling must prove that “(1) the Government’s wrongful conduct
prevented the petitioner from filing a timely motion; or (2) extraordinary circumstances
beyond the petitioner’s control made it impossible to file within the statutory deadline.”
Kuusk v. Holder, 732 F.3d 302, 307 (4th Cir. 2013). A petitioner who relies on
“extraordinary circumstances”—as Petitioner did here—“must also show that ‘he has been
pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland v. Florida,
560 U.S. 631, 649 (2010)).
Our Court has consistently reviewed the Board’s due diligence and equitable tolling
determinations under a deferential abuse-of-discretion standard. Because no decision of
2
Kucana’s discussion about what Congress “specified” and “left . . . where it was” in
enacting IIRIRA, supra, at 13 (internal quotation marks omitted), addresses decisions left
to Board discretion by statute versus regulation; it does not address Section 1252(a)(2)(C).
53
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 54 of 69
the Supreme Court or en banc opinion of this Court has disturbed that precedent, this panel
is bound by it. And even if our precedent were in doubt, abuse of discretion is an
appropriate standard for judicial review of this fact-specific agency determination.
A.
We review the denial of a motion to reopen or reconsider for abuse of discretion.
See 8 C.F.R. § 1003.2(a) (“The decision to grant or deny a motion to reopen or reconsider
is within the discretion of the Board, subject to the restrictions of this section.”); Cucalon
v. Barr, 958 F.3d 245, 253–254 (4th Cir. 2020) (motion to reconsider); Mosere v. Mukasey,
552 F.3d 397, 400 (4th Cir. 2009) (motion to reopen). In applying this standard, the
Board’s decision receives “extreme deference” and should be reversed “only if the decision
is arbitrary, capricious, or contrary to law.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th
Cir. 2009) (internal quotation marks omitted); see also Cucalon, 958 F.3d at 254 (same);
Mosere, 552 F.3d at 400 (same); Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006) (“In
applying this standard, we must affirm the BIA’s denial [of reconsideration] unless it
lacked a rational explanation, departed from established policies, or rested on an
impermissible basis.” (internal quotation marks omitted)). “It need only be reasoned, not
convincing.” Lawrence, 826 F.3d at 203 (internal quotation marks omitted). Yet the Board
abuses its discretion if it “fail[s] to offer a reasoned explanation for its decision, or if it
distort[s] or disregard[s] important aspects of the applicant’s claim.” Tassi v. Holder, 660
F.3d 710, 719 (4th Cir. 2011).
We have applied this abuse-of-discretion standard to Board decisions denying
equitable tolling. Indeed, this Court has consistently reviewed the Board’s equitable tolling
54
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 55 of 69
decisions—including its due diligence assessments—for abuse of discretion. See Kuusk,
732 F.3d at 307 (“We therefore hold that the BIA did not abuse its discretion in determining
that equitable tolling was not warranted here.”); see also, e.g., Lawrence, 826 F.3d at 203–
206 (reviewing Board’s diligence assessment for abuse of discretion); Singh v. Garland,
No. 21-1662, 2022 WL 500505, at *1 (4th Cir. Feb. 18, 2022) (“We conclude that the
Board did not abuse its discretion in determining that equitable tolling was unwarranted
. . . .”); Chen v. Barr, 776 Fed. App. 801, 801–802 (4th Cir. 2019) (“We conclude that the
Board did not abuse its discretion in denying Chen equitable tolling on the basis that he
was not reasonably diligent . . . .”); Kinyanjui v. Sessions, 698 Fed. App. 753, 754 (4th Cir.
2017) (reviewing denial of equitable tolling for abuse of discretion); Onema v. Holder, 517
Fed. App. 139, 139 n.* (4th Cir. 2013) (“[W]e . . . find no abuse of discretion in [the
Board’s] alternate finding that Onema was not entitled to equitable tolling on the ground
that he failed to demonstrate that he acted with due diligence.”); Urga v. Holder, 461 Fed.
App. 319, 319 (4th Cir. 2012) (“[W]e conclude that the Board did not abuse its discretion
in finding that Urga was not sufficiently diligent to support equitable tolling . . . .”);
Perdomo v. Ashcroft, 112 Fed. App. 889, 890 (4th Cir. 2004) (“The Board did not abuse
its discretion in holding that . . . Perdomo did not establish the due diligence necessary to
invoke” equitable tolling.).
A published decision of a panel of this Court “becomes the law of the circuit and is
binding on other panels unless it is overruled by a subsequent en banc opinion of this court
or a superseding contrary decision of the Supreme Court.” Indus. TurnAround Corp. v.
NLRB, 115 F.3d 248, 254 (4th Cir. 1997) (internal quotation marks omitted). Petitioner
55
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 56 of 69
contends that Guerrero-Lasprilla requires this Court to review the Board’s equitable
tolling decisions de novo. But, as the majority correctly recognizes, Guerrero-Lasprilla
decided a jurisdictional question and expressly declined to address “the proper standard for
appellate review.” Guerrero-Lasprilla, 140 S. Ct. at 1069; see id. (“[T]hese cases present
no such question involving the standard of review.”); see also supra, at 18–19. Nor does
Petitioner or the majority identify any other Supreme Court decision that “clearly
undermine[s]” our precedent applying abuse-of-discretion review. United States v.
Williams, 155 F.3d 418, 421 (4th Cir. 1998). Our decisions in Lawrence and Kuusk,
therefore, remain “the law in this Circuit, and we are bound to follow [them] here.” Stahle
v. CTS Corp., 817 F.3d 96, 100 (4th Cir. 2016).
Yet the majority does not follow our precedent. It claims that our cases have
produced “conflicting answers,” but in support the majority cites only decisions outside the
immigration context, where we reviewed de novo a district court’s denial of equitable
tolling as a matter of law. Supra, at 25. 3 When reviewing the Board’s denial of equitable
tolling in the context of a motion to reopen or reconsider, however, our cases have not
wavered from applying abuse-of-discretion review in all circumstances. The majority
attempts to distinguish Lawrence, but that decision straightforwardly reviewed the Board’s
3
Even those cases limited de novo review to circumstances “where the relevant facts are
undisputed and the district court denied equitable tolling as a matter of law,” applying
abuse-of-discretion review in “all” other circumstances. Smith v. Pennington, 352 F.3d
884, 892 (4th Cir. 2003) (internal quotation marks omitted); see Warfaa v. Ali, 1 F.4th 289,
293–294 (4th Cir. 2021). The majority apparently rejects even that nuance, as it seems to
require de novo review of “the BIA’s decision to deny equitable tolling” in every case,
without concern for whether that decision rested on factual or legal determinations. Supra,
at 32.
56
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 57 of 69
equitable-tolling diligence determination for abuse of discretion. The Court first rejected
the petitioner’s claim that the Board articulated or applied an improperly heightened
diligence standard. 826 F.3d at 204–206; see id. at 203 (explaining that, under abuse-of-
discretion review, the Board should be reversed if its decision is “contrary to law” (internal
quotation marks omitted)). The Court then dispensed with the petitioner’s procedural
assignments of error, concluding that the Board did not “‘disregard[] important aspects of
[his] claim’” or fail to provide “a sufficiently ‘reasoned explanation for its decision.’” Id.
at 206 (quoting Tassi, 660 F.3d at 719). That is abuse-of-discretion review, plain and
simple.
Because our precedent demands that we review the Board’s denial of equitable
tolling in this context only for abuse of discretion, that ends the matter. Petitioner may
seek en banc review to overrule this Court’s prior decisions, but this panel is not at liberty
to fashion a standard of review different from that dictated by our precedent.
B.
Even if our precedent were not crystal clear, a deferential standard is appropriate for
reviewing the Board’s equitable-tolling due-diligence determinations. 4 For starters, our
only guidance from positive law suggests abuse-of-discretion review. Federal regulation
provides that “[t]he decision to grant or deny a motion to reopen or reconsider is within the
discretion of the Board.” 8 C.F.R. § 1003.2(a); see Kucana, 558 U.S. at 242 (“Mindful of
the Board’s ‘broad discretion’ in such matters, however, courts have employed a
4
In his brief, the Attorney General advocates abuse-of-discretion review; he does not
request any other deferential standard, such as substantial evidence or clear error.
57
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 58 of 69
deferential, abuse-of-discretion standard of review.” (quoting INS v. Doherty, 502 U.S.
314, 323 (1992))).
Of course, the Board’s decision whether to reopen or reconsider will be based on its
resolution of the ground presented for that action. Here, the Board denied relief because
Petitioner failed to demonstrate sufficient diligence to warrant equitable tolling of the limits
on motions to reconsider. That issue too may be composed of subsidiary questions, which
are each reviewed according to their kind. For example, the Board “would necessarily
abuse its discretion if it based its ruling on an erroneous view of the law,” such as applying
the wrong legal standard for diligence. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990). And, if the Board’s factfinding were reviewable in this case, it would be an
abuse of discretion to base its ruling on a factual determination unsupported by substantial
evidence. See id.; 8 U.S.C. § 1252(b)(4)(B). But what about the Board’s decision whether
the historical facts found satisfy the legal test for due diligence? This is a “mixed question
of law and fact.” Guerrero-Lasprilla, 140 S. Ct. at 1069.
Some mixed questions “call[] for review de novo” while others “call[] for
deferential review.” Id.; see U.S. Bank N.A. v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 967
(2018) (“Mixed questions are not all alike.”). The majority, however, takes abuse-of-
discretion review off the table from the very beginning of its analysis by setting up a false
dichotomy between de novo and substantial evidence review on the one hand and leaving
the matter entirely to agency discretion on the other. See supra, at 25–27. But agency
discretion is not absolute. In the context of Board reopening and reconsideration decisions,
abuse-of-discretion review is deferential yet retains substantive and procedural elements:
58
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 59 of 69
The Board’s decision must not be “arbitrary, capricious, or contrary to law,” Massis v.
Mukasey, 549 F.3d 631, 636 (4th Cir. 2008), may not rest on an impermissible basis, Jean,
435 F.3d at 483, must “offer a reasoned explanation,” and must not “distort[] or disregard[]
important aspects of the applicant’s claim,” Tassi, 660 F.3d at 719. See Direx Israel, Ltd.
v. Breakthrough Med. Corp., 952 F.2d 802, 814 (4th Cir. 1991), as amended (Jan. 7, 1992)
(“‘Abuse of discretion’ is a legal term of art; it is not a wooden term but one of flexibility,
dependent on the type of case in which it is to be applied and the posture of the case when
it arises.”). If the Board applies the correct law and observes these bounds on its
decisionmaking, then its choice within the resulting range of permissible decisions will not
be disturbed. See generally Harry T. Edwards & Linda A. Elliott, Federal Standards of
Review 83–85 (3d ed. 2018) (discussing abuse-of-discretion review of mixed questions),
259–260 (discussing arbitrary and capricious review). There is no reason abuse-of-
discretion review should not be among the “deferential” standards considered for deciding
this mixed question of law and fact. Guerrero-Lasprilla, 140 S. Ct. at 1069.
To determine the proper standard for this mixed question we ask “[w]hat is the
nature of the mixed question here” and which decisionmaker “is better suited to resolve
it?” Vill. at Lakeridge, 138 S. Ct. at 966. Mixed questions that “require courts to expound
on the law” typically receive de novo review, while mixed questions that “immerse courts
in case-specific factual issues” warrant deferential review. Id. at 967. For example, the
Supreme Court held that a bankruptcy court’s decision that a transaction was at arm’s
length when considering the facts “as a whole” was a case-specific mixed question
warranting clear-error review. Id. at 968. The Supreme Court applied the same deferential
59
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 60 of 69
standard to a district court’s conclusion that a country qualified as a child’s habitual
residence under a “totality-of-the-circumstances” test. Monasky v. Taglieri, 140 S. Ct. 719,
730 (2020); see also Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021) (reviewing these
cases and concluding that whether removal would pose an “exceptional and extremely
unusual hardship” to a noncitizen’s family is “equally fact-bound” and so warrants
“deference to the Board”). 5
The legal standard for due diligence in equitable tolling is “reasonable diligence.”
Lawrence, 826 F.3d at 204. “The inquiry is ‘fact-intensive and case-specific,’ requiring a
court to ‘assess[] the reasonableness of petitioner’s actions in the context of his or her
particular circumstances.’” Id. (quoting Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.
2011)); see Guerrero-Lasprilla, 140 S. Ct. at 1074 (Thomas, J., dissenting) (“To determine
whether a litigant has exercised due diligence, judges must conduct what this Court has
characterized as an ‘equitable, often fact-intensive’ inquiry, considering ‘in detail’ the
unique facts of each case to decide whether a litigant’s efforts were reasonable in light of
his circumstances.” (quoting Holland, 560 U.S. at 653–654)). Each diligence conclusion
turns on special facts that resist generalization: what actions did the noncitizen take to
pursue his rights; how frequently and over what timeframe did he act; what claims does he
seek to raise; what did he know or should he have known and when; what obstacles did he
face; and so forth. In other words, the decisionmaker “takes a raft of case-specific historical
facts, considers them as a whole, [and] balances them one against another” to determine
5
The majority incorrectly reports that the Singh court “require[d] de novo review” for this
question. Supra, at 24.
60
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 61 of 69
whether a particular person made reasonably diligent efforts to pursue certain of his rights
in the particular circumstances he faced. Vill. at Lakeridge, 138 S. Ct. at 968. 6 This is
factual work.
On the other side of the coin, “a fact-intensive mixed question like due diligence . . .
requires ‘[p]recious little’ ‘legal work.’” Guerrero-Lasprilla, 140 S. Ct. at 1076 (Thomas,
J., dissenting) (quoting Vill. at Lakeridge, 138 S. Ct. at 968). The majority’s own examples
of the “legal work” to be done in deciding due diligence illustrate the point. Supra, at 28
(internal quotation marks omitted). For example, “what level of vigilance we can fairly
expect from a noncitizen who has lived in another country for over a decade before the
United States finally changed the law,” supra, at 28, is not “a generally recurring, purely
legal matter” or “readily resolved by reference to general legal principles and standards
alone,” Buford v. United States, 532 U.S. 59, 65 (2001). Rather it “grows out of, and is
bounded by, case-specific detailed factual circumstances.” Id. Moreover, the fact-bound
nature of the diligence decision means even de novo review “will not much clarify legal
principles or provide guidance to other courts” assessing diligence in other circumstances.
Vill. at Lakeridge, 138 S. Ct. at 968; see also Buford, 532 U.S. at 65–66; Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (“As a discretionary doctrine that turns on
the facts and circumstances of a particular case, equitable tolling does not lend itself to
bright-line rules.” (internal quotation marks omitted)).
6
The majority offers examples of what it considers analogous determinations about
reasonableness in other contexts that receive de novo review. See supra, at 28–29. Many
of those examples arise “[i]n the constitutional realm,” where, the Supreme Court tells us,
“the calculus changes.” Vill. at Lakeridge, 138 S. Ct. at 967 n.4.
61
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 62 of 69
All of this indicates that the agency is “better suited” than the courts of appeals to
resolve the mixed question of due diligence for equitable tolling of the limits on motions
to reopen and reconsider. Vill. at Lakeridge, 138 S. Ct. at 966. The Board also “sees many
more” requests for tolling of the limits on motions to reopen and reconsider “than does an
appellate judge,” giving it experience that aids its decisionmaking. Buford, 532 U.S. at 64.
And as part of the executive agency charged with interpreting and applying our Nation’s
immigration laws, the Board possesses expertise and special familiarity with the
immigration context in which these claims arise and the general circumstances of removed
noncitizens.
The majority counters that the Board itself reviews de novo equitable-tolling
determinations made by immigration judges and “analogous questions.” Supra, at 29–31
& n.9. With respect for my colleagues in the majority, it is not “difficult to understand”
why we have required the Board to review such questions de novo even though that
standard does not govern our own review of the Board’s work. Supra, at 31 n.9. By
regulation, the Board is authorized to review “questions of law, discretion, and judgment
and all other issues in appeals from decisions of immigration judges de novo.” 8 C.F.R.
§ 1003.1(d)(3)(ii). As we have explained, this includes, “in cases involving mixed
questions of law and fact, the application of the governing legal standard to the facts found
by the immigration judge.” Cruz-Quintanilla v. Whitaker, 914 F.3d 884, 889 (4th Cir.
2019); see Upatcha v. Sessions, 849 F.3d 181, 184 (4th Cir. 2017). The only category
excluded from this list is “purely factual finding[s].” Cruz-Quintanilla, 914 F.3d at 889;
see 8 C.F.R. § 1003.1(d)(3)(i). To state the obvious, that regulation does not control our
62
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 63 of 69
review of Board decisions. 7 Nor is there any conflict between conceptualizing due
diligence for equitable tolling as a “question of law, discretion,” “judgment,” or “other
issue” before the Board and a mixed question of law and fact on judicial review.
Given all this, the question of a noncitizen’s due diligence for equitably tolling the
limits on motions to reopen or reconsider Board removal orders is a mixed question calling
for deferential judicial review. It is unsurprising, then, that other courts of appeals continue
to review due diligence and equitable tolling under a deferential abuse-of-discretion
standard, even after Guerrero-Lasprilla. For example, in Flores-Moreno v. Barr, 971 F.3d
541 (5th Cir. 2020), the Fifth Circuit determined that it possessed jurisdiction to review the
Board’s equitable tolling decision as a mixed question of fact and law, id. at 544, and then
reviewed the Board’s tolling and due diligence determinations only for abuse of discretion.
See id. at 545 (“[T]he BIA did not abuse its discretion holding that Flores-Moreno failed
to pursue his rights diligently . . . .”). Other circuits have continued to do the same. See,
e.g., Diarrassouba v. Garland, No. 20-1105, 2022 WL 2517330, at *1 (2d Cir. July 7,
2022) (“The BIA did not abuse its discretion in determining that Diarrassouba did not
demonstrate due diligence as required for equitable tolling.”); Zhou v. U.S. Att’y Gen., No.
21-1453, 2022 WL 212311, at *4 (3d Cir. Jan. 25, 2022) (“[W]e find no abuse of discretion
in the BIA’s conclusion that Zhou failed to show due diligence.”); Njai v. Garland, No.
21-3764, 2022 WL 2903443, at *6 (6th Cir. July 22, 2022) (“[T]he BIA did not abuse its
7
As we explained in Cruz-Quintanilla, the standard of review there concerned “the
division of labor within the agency itself.” 914 F.3d at 891. Here, however, the standard
of review implicates “the division of authority between the Executive and the judiciary.”
Id.
63
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 64 of 69
discretion when it declined Njai’s equitable tolling argument . . . .”); Hernandez-Alvarez v.
Barr, 982 F.3d 1088, 1096 (7th Cir. 2020) (“We thus cannot conclude that the Board
abused its discretion in determining that equitable tolling was not warranted” for
petitioner’s motion to reconsider.); Tenorio v. Garland, No. 019-71321, 2022 WL 501567,
at *1 (9th Cir. Feb. 18, 2022) (“[I]t was not an abuse of discretion for the IJ and the BIA to
deny equitable tolling” on petitioner’s motion to reopen.); Berdiev v. Garland, 13 F.4th
1125, 1134 (10th Cir. 2021) (“[T]he BIA . . . did not abuse its discretion in determining
that Berdiev was not entitled to equitable tolling due to a lack of due diligence.”); Tejada-
Palacios v. Att’y Gen., No. 21-11717, 2022 WL 168802, at *2 (11th Cir. Jan. 19, 2022)
(“[T]he BIA did not abuse its discretion by concluding that equitable tolling was not
warranted because Tejada-Palacios had not pursued his rights diligently.”).
Until today, so did our Court. See supra, at 54–55. Finding that precedent amply
supported—not to mention binding—I would adhere to it.
III.
We turn now to the merits of Petitioner’s claim. We can assume that the Board may
equitably toll the statutory time and number limits on motions to reconsider. See 8 U.S.C.
§ 1229a(c)(6). The parties agree that tolling is permissible, and we have held that the filing
deadline for motions to reopen is subject to equitable tolling. See Kuusk, 732 F.3d at 305;
8 U.S.C. § 1229a(c)(7)(C)(i). Even assuming tolling is available, however, the Board did
not abuse its discretion in denying it here.
Petitioner was deported to Jamaica in 2007. In his 2019 motion to reconsider,
Petitioner stated that he did “not do anything for the previous twelve years or so” to
64
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 65 of 69
discover any change in the law, pursue his rights, or attempt to regain admission to the
United States. A.R. 25. Petitioner explained that he and his wife, who lived in the United
States, lived under “crushing poverty” and “could not on their own retain an attorney or be
apprised of the latest changes in Supreme Court interpretations.” A.R. 18–19. In April
2019, however, Petitioner’s wife consulted an attorney and, as a result, Petitioner learned
of intervening changes in the law—including the Supreme Court’s April 2018 decision in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018)—that meant his assault conviction no longer
qualified as an aggravated felony. Counsel received Petitioner’s immigration records in
June 2019 and filed the motion to reconsider on his behalf in July 2019.
The Board denied equitable tolling because Petitioner did “not demonstrate[] that
he acted with due diligence in pursuing his latest motion to reconsider.” A.R. 4.
“Assuming” Petitioner had no claim for reconsideration until Dimaya, the Board concluded
that “the circumstances presented by [Petitioner] do not show he pursued his motion with
due diligence after the Supreme Court’s holding in Sessions v. Dimaya.” A.R. 4–5. 8 The
Board recounted Petitioner’s argument that he and his wife were too poor to afford internet
service or legal counsel and that he acted with diligence after he learned of Dimaya in April
2019. But the Board observed that Petitioner did “not explain[], even considering his
family’s low income, why they had not sought” pro bono counsel before April 2019. A.R.
5. The Board noted that Petitioner’s “prior counsels were pro bono” and “no explanation
8
Petitioner does not argue that the Board measured diligence from the wrong starting point
in its analysis of his motion to reconsider. He does claim that the Board misidentified the
date from which to measure diligence as part of denying sua sponte reopening, but as
explained below, we lack jurisdiction to consider that claim.
65
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 66 of 69
[is] given why he could not have maintained contact with counsel regarding the status of
the law affecting his removal,” especially considering the record evidence “that his wife
could assist him from the United States in maintaining contact with counsel.” A.R. 5. The
Board therefore concluded that Petitioner had not shown that “he acted with the reasonable
diligence that would ordinarily be expected from a person in his situation.” A.R. 5.
Before this Court, Petitioner principally contends that he took action after he learned
of Dimaya (by “happenstance,” as he calls it, Reply Br. 17) and it was unreasonable to
expect him to make any effort to stay abreast of developments in the law. In other words,
Petitioner disagrees with the very existence of the requirement to “show that ‘he has been
pursuing his rights diligently.’” Lawrence, 826 F.3d at 204 (quoting Holland, 560 U.S. at
649); see Credit Suisse Secs. (USA) LLC v. Simmonds, 566 U.S. 221, 227–229 & n.7 (2012)
(reasoning that an “actual-notice rule departs from usual equitable-tolling principles”).
Petitioner observes that his prior pro bono counsel was not obligated to continue the
attorney-client relationship after he was deported. But that mischaracterizes the Board’s
opinion, which noted that Petitioner gave “no explanation” why he could not contact his
prior counsel to seek information. A.R. 5. Petitioner also argues that the attorney his wife
contacted in April 2019 was retained, not pro bono as the Board stated, therefore it was
improper for the Board to fault him for not seeking pro bono counsel before April 2019.
The attorney’s status is a factual dispute we lack jurisdiction to consider. See 8 U.S.C.
§ 1252(a)(2)(C). But regardless of whether that attorney received payment, it was not
improper for the Board to consider, as part of its diligence assessment, that Petitioner did
not seek the advice of any counsel before April 2019.
66
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 67 of 69
Ultimately, the Board set forth and applied the correct standard, conducted an
individualized inquiry that acknowledged Petitioner’s evidence and considered his
particular circumstances, and provided a reasoned explanation based on that evidence.
Petitioner disagrees with the Board’s conclusion, but he has failed to show that its decision
was “arbitrary, capricious, or contrary to law.” Lawrence, 826 F.3d at 203 (quoting
Sadhvani, 596 F.3d at 182); see Cucalon, 958 F.3d at 254.
In a footnote, the majority claims it would vacate the Board’s decision even under
the abuse-of-discretion standard because the Board found equitable tolling warranted in a
different case presenting somewhat similar facts and the agency did not supply “‘reasoned
decisionmaking’” for “reach[ing] the opposite result here.” Supra, at 30 n.8 (quoting
Judulang v. Holder, 565 U.S. 42, 53 (2011)). In that case, the Board found a deported
noncitizen reasonably diligent where he “made repeated efforts over the course of
approximately 3 years” after removal to “learn whether his proceedings could be
reopened,” but “abandoned these efforts” after he was told “on multiple occasions that
there was nothing that could be done.” In re: Sergio Lugo-Resendez, 2017 WL 8787197,
at *3 (BIA 2017). When the noncitizen later learned that the law affecting his case had
changed, he took “immediate[]” action. Id. Whatever the factual similarities and
differences between that case and this one, the majority’s reliance on Judulang is out of
place. In Judulang, the Supreme Court considered whether a certain Board policy was
arbitrary or capricious under the Administrative Procedure Act. See 565 U.S. at 52 (citing
5 U.S.C. § 706(2)(A)). Like other agencies, the Board must engage in “reasoned
decisionmaking” when it creates a binding rule or policy. Id. at 53. The Board’s
67
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 68 of 69
unpublished decision in Lugo-Resendez did not establish such a rule or policy. And
reaching a different result based on different facts is not an abuse of discretion.
Accordingly, I would deny the petition for review of the Board’s decision denying
reconsideration.
IV.
Lastly, Petitioner contends that the Board erred by declining to reopen his case sua
sponte. Like every other circuit to have considered the issue, we have held that we lack
jurisdiction to review the Board’s denial of sua sponte reopening “because there are no
meaningful standards for courts to apply in review.” Mosere, 552 F.3d at 400 (collecting
cases); see 5 U.S.C. § 701(a)(2); Tamenut v. Mukasey, 521 F.3d 1000, 1003–1005 (8th Cir.
2008) (en banc).
Petitioner argues we should recognize an exception to this settled rule for reviewing
alleged legal errors. The majority does not resolve Petitioner’s argument but notes that
seven other circuits exercise jurisdiction to review some legal errors. Supra, at 40 n.10.
These circuits primarily have recognized a basis for jurisdiction when the Board denies sua
sponte reopening because it believes that some legal barrier prevents the exercise of its
discretionary authority. See Thompson v. Barr, 959 F.3d 476, 483–484 (1st Cir. 2020);
Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009); Pllumi v. Att’y Gen., 642 F.3d 155,
161–163 (3d Cir. 2011); Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 355 (5th Cir.
2018); Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016); Reyes-Vargas v. Barr, 958 F.3d
1295, 1299–1300 (10th Cir. 2020); but see Fuller v. Whitaker, 914 F.3d 514, 519 (7th Cir.
2019) (claiming jurisdiction “to recognize and address constitutional transgressions and
68
USCA4 Appeal: 20-1854 Doc: 43 Filed: 11/16/2022 Pg: 69 of 69
other legal errors that the Board may have committed in disposing of” a motion to reopen
sua sponte). 9
Petitioner’s alleged legal errors do not fall within this narrow category, so “[e]ven
if we were to adopt such an exception . . . , it would not apply here.” Lawrence, 826 F.3d
at 207 n.5. Petitioner claims the Board committed two reviewable legal errors. First, citing
Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002), the Board explained “that an alien’s
diligence in seeking to reopen proceedings is an appropriate consideration when
determining whether to grant sua sponte reopening.” A.R. 5. Petitioner argues that Matter
of G-C-L- does not stand for that proposition. Second, Petitioner argues the Board
misidentified the date from which it should measure his diligence. The Board, however,
did not treat Matter of G-C-L- or the operative date for evaluating Petitioner’s diligence as
legal barriers to exercising its discretion to reopen Petitioner’s removal proceedings sua
sponte. Rather, the Board recognized its authority to sua sponte reopen Petitioner’s case
but declined to do so because Petitioner did not satisfactorily explain his lack of diligence. 10
Thus, even assuming we have limited jurisdiction to correct certain legal errors, I would
dismiss this claim for lack of jurisdiction.
9
Three circuits have rejected similar arguments in whole or in part. See Rais v. Holder,
768 F.3d 453, 464 (6th Cir. 2014); Vue v. Barr, 953 F.3d 1054, 1057 (8th Cir. 2020); Butka
v. Att’y Gen., 827 F.3d 1278, 1286 & n.7 (11th Cir. 2016); Lenis v. Att’y Gen., 525 F.3d
1291, 1292–1294 (11th Cir. 2008).
10
Indeed, Petitioner’s arguments about whether and how the Board may consider diligence
in deciding whether to reopen sua sponte appear to raise exactly the sort of questions we
lack any meaningful standard to evaluate. No statute or regulation “sets forth [any] factors
for the BIA to consider in deciding whether to reopen sua sponte, places [any] constraints
on the BIA’s discretion, [or] specifies [any] standards for a court to use to cabin the BIA’s
discretion.” Tamenut, 521 F.3d at 1004.
69